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The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



cou= 

TITOl 



EXECUTIVE ORDERS 

IN ADDITION 
Labor 

PROPOSED RULES 
Administration 

Environment, Health, and Natural Resources 
Geologists, Board of 
Human Resources 
Justice 
Labor 
State Personnel 

LIST OF RULES CODIFIED 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 

ISSUE DATE: May 3, 1993 

Volume 8 • Issue 3 • Pages 229-331 



RECEIVED 

MAY 10 1993 

LMV UBRAR' 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC. the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447. (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Of/ice of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 6-7 229 

II. IN ADDITION 

Labor 231 

III. PROPOSED RULES 

Administration 

Low-Level Radioactive Waste . . . 232 
Environment, Health, and 
Natural Resources 

Coastal Management 279 

Health Services 283 

Human Resources 

Social Services Commission .... 237 
Justice 

Criminal Justice Education and 
Training Standards Commission . 253 

Criminal Justice Standards 

Division 241 

Private Protective Services 252 

Labor 

OSHA 278 

Licensing Board 

Geologists 285 

State Personnel 

Office of State Personnel 286 

IV. LIST OF RULES CODIFIED . 290 

V. RRC OBJECTIONS 298 

VI. RULES INVALIDATED BY 

JUDICIAL DECISION 303 

VII. CONTESTED CASE DECISIONS 

Index to ALI Decisions 304 

Text of Selected Decisions 

91 OSP0941 306 

92 DHR 1192 313 

92 DOA 1662 320 

93 CPS 0152 327 

VIII. CUMULATIVE INDEX 330 



NORTH CAROLINA REGISTER 

Publication Schedule 
(January 1993 - December 1993) 







Last Day 


Earliest 


Earliest 










for Elec- 


Date for 


Date for 


Last Day 


""Earliest 


Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 

>t s< x. x x >e >: 


by Agency 


to RRC 

>e >4 >: x :-e sk ak 


Date 


01/04/93 


12/09/92 


12/16/92 


01/19/93 


02/03/93 


02/20/93 


04/01/93 


01/15/93 


12/22/92 


12/31/92 


01/30/93 


02/14/93 


02/20/93 


04/01/93 


02/01/93 


01/08/93 


01/15/93 


02/16/93 


03/03/93 


03/20/93 


05/03/93 


02/15/93 


01/25/93 


02/01/93 


03/02/93 


03/17/93 


03/20/93 


05/03/93 


03/01/93 


02/08/93 


02/15/93 


03/16/93 


03/31/93 


04/20/93 


06/01/93 


03/15/93 


02/22/93 


03/01/93 


03/30/93 


04/14/93 


04/20/93 


06/01/93 


04/01/93 


03/11/93 


03/18/93 


04/16/93 


05/01/93 


05/20/93 


07/01/93 


04/15/93 


03/24/93 


03/31/93 


04/30/93 


05/15/93 


05/20/93 


07/01/93 


05/03/93 


04/12/93 


04/19/93 


05/18/93 


06/02/93 


06/20/93 


08/02/93 


05/14/93 


04/23/93 


04/30/93 


05/29/93 


06/13/93 


06/20/93 


08/02/93 


06/01/93 


05/10/93 


05/17/93 


06/16/93 


07/01/93 


07/20/93 


09/01/93 


06/15/93 


05/24/93 


06/01/93 


06/30/93 


07/15/93 


07/20/93 


09/01/93 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


07/31/93 


08/20/93 


10/01/93 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/14/93 


08/20/93 


10/01/93 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


10/01/93 


09/10/93 


09/17/93 


10/16/93 


10/31/93 


11/20/93 


01/04/94 


10/15/93 


09/24/93 


10/01/93 


10/30/93 


11/14/93 


11/20/93 


01/04/94 


I 1 01 93 


10/11/93 


10/18/93 


11/16/93 


12 01 93 


12/20/93 


02/01/94 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


12 01 93 


11/05/93 


11/15/93 


12/16/93 


12/31/93 


01/20/94 


03/01/94 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 



* Tfie "Earliest Effective Date " is computed assuming that the agency follows the 
publication schedule above, that the Rules Review Commission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 6 

ENTREPRENEURIAL DEVELOPMENT 

BOARD 



Section 4. MEETINGS 

A. The Board shall meet at least quarterly at 

the call of its Chair. 



WHEREAS the State of North Carolina is com- 
mitted to the development of a vibrant economy 
for the people of the State; and 

WHEREAS business in North Carolina operates 
in a global economy where information expands at 
a geometric rate and rapid responses are necessary 
to remain competitive, particularly in high-technol- 
ogy fields; and 

WHEREAS an economic environment which 
nurtures fledgling and developing companies would 
serve both these functions; and 

WHEREAS there is currently no government 
organization dedicated exclusively to collaboration 
and coordination among state and non-state entities 
in the creation and maintenance of a dynamic 
entrepreneurial business environment; 

NOW THEREFORE, by the authority vested in 
me as Governor by the Constitution and laws of 
the State of North Carolina. IT IS ORDERED: 

Section 1. ESTABLISHMENT 

A. The Entrepreneurial Development Board 
("Board") is hereby established. 

B. The Entrepreneurial Development Advi- 
sory Council ("Advisory Council") is 
also hereby established. 



B. The Advisory Council shall meet as 

necessary to effect its purposes at the call 
of either its Chair or the Board's Chair. 

Section 5. DUTIES 

A. The Board shall have the following duties 

and responsibilities: 

1 . Make recommendations to the Governor 
and the General Assembly regarding 
policy, programs, and monies required 
to nurture entrepreneurial business 
growth and development throughout 
North Carolina, including changes in 
the state tax structure; 

2. Work to improve collaboration among 
the various state, local, federal, private, 
and non-profit entities involved in 
entrepreneurial business development; 

3. Examine the need for programs in the 
areas of export and contract assistance; 
training and education; funding resourc- 
es; technological assistance; manufac- 
turing assistance; and development of 
high-growth, startup, and fledgling 
entrepreneurial businesses; 

4. Develop a statewide, inclusive entrepre- 
neurial development program; 



Section 2. MEMBERSHIP 

A. The Board shall be composed of at least 
20 members appointed by the Governor 
to serve at his pleasure. Ideally, a ma- 
jority of the Board themselves should be 
entrepreneurs. 

B. The Secretary of Commerce, or his 
designee, shall serve as a non-voting, ex 
officio member of the Board. 



6. 



Study practices for entrepreneurial 
business development throughout the 
United States and the world and deter- 
mine their applicability to North 
Carolina's economic environment; 

Provide a report to the Governor on 
January 31st of each year concerning 
the status of entrepreneurial develop- 
ment in North Carolina; 



C. The Advisory Council may include state 

and non-state entities concerned with 
entrepreneurial and small business. 

Section 3. CHAIR 

The Governor shall appoint a Chair for the Board 
and the Advisory Council, both of whom shall 
serve at his pleasure. 



Plan and conduct an annual Governor's 
Conference on Entrepreneurial Devel- 
opment; 

Review existing state and local small 
business programs to make recommen- 
dations for redirection, enhancement, or 
elimination; and 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



229 



EXECUTIVE ORDERS 



9. Undertake such other activities as are 

necessary to effect the Board's respon- 
sibility to foster development of a vi- 
brant entrepreneurial community in 
North Carolina. 

B. The purpose of the Advisory Council is 

to provide such technical advice to the 
Board as it requests. 

Section 6^ ADMINISTRATION 

1 . The Department of Commerce shall provide 
staff and administrative support services for the 
Board. 

2. The Board shall work closely with the NC 
Economic Development Board. 

3. Board members shall receive reimbursement 
for reasonable expenses, as allowed by North 
Carolina law. 

This Order is effective immediately. 

Done in the Capitol City of Raleigh, North 
Carolina, this the 12th day of April, 1993. 

EXECUTIVE ORDER NUMBER 7 

ABOUISHING THE NORTH 

CAROLINA DRUG CABINET 

WHEREAS, the duties of the North Carolina 
Drug Cabinet have been transferred to existing 
state agencies on the front line of crime fighting, 
including the Department of Justice and the 
Governor's Crime Commission, 

NOW THEREFORE, pursuant to the authority 
vested in me as Governor by the Constitution and 
laws of North Carolina. IT IS ORDERED: 

Section U Abolishment. 

The North Carolina Drug Cabinet established by 
Executive Order Number 80 by Governor James 
G. Martin, and reestablished by Executive Order 
Number 108, amended by Martin Executive Order 
Number 117, is hereby abolished. Executive 
Orders 108 and 1 17 of the Martin Administration 
are hereby rescinded. 

This executive order shall be effective immedi- 
ately. 

Done in the Capital City of Raleigh. North 
Carolina, this the 13th day of April, 1993. 



230 8:3 NORTH CAROLINA REGISTER May 3, 1993 



IN ADDITION 



) 



TITLE 13 - DEPARTMENT OF LABOR 

CHAPTER 7 - OFFICE OF OCCUPATIONAL SAFETY AND HEALTH 

MAY 6 AND MAY 10 HEARINGS 

CLARIFICATION TO THE NOTICE PUBLISHED IN 8:2 NCR 97-210: 

The place of the 2:00 PM May 6 public hearing (announced on page 97 of the issue of April 15, 1993) has 
been changed from the Labor Building to the Highway Building auditorium, 1 South Wilmington Street, 
Raleigh, North Carolina. 

Persons wishing to testify on the adoption of proposed 13 NCAC 7A .0401 (Carolina Star Program) or 
proposed 13 NCAC 7A .0601 - .0607 (Safety and Health Programs and Committees) may do so either at the 
above hearing on May 6, 1993, or at the continuation of that hearing to May 10, 1993, at 10:30 AM in Room 
150 of the Highway Building, 1 South Wilmington Street, Raleigh, North Carolina. 



8:3 NORTH CAROLINA REGISTER May 3, 1993 231 



PROPOSED RULES 



TITLE 1 - DEPARTMENT OF 
ADMINISTRATION 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the NC Low-Level Radioactive 
Waste Management Authority intends to amend 
rules cited as 1 NCAC 37 .0102 -.0103, .0201, 
. 0208 and . 0306. No hearing is required. Tins a 
changed version of proposed text the agency 
previously published on February 1, 1993 in 
Volume 7 Issue 21 of the NC Register in the 
course of Rulemaking Proceedings but did not 
adopt. A public hearing was previously held on 
February 22. 1993. 

1 he proposed effective date of this action is 
August 2. 1993. 

ixeason for Proposed Action: Having received 
oral and written comments on proposed rule 
amendments , the Authority adopted changes to 
some of the amendments on April 7. Before 
formally adopting the amendments, the text should 
he published in the NC Register . 

(comment Procedures: The Authority will receive 
written comments from the public through June 2, 
1993. Written comments should be sent to: 
Rulemaking Coordinator, Chrystal H. Stowe, 
NCLLRWMA. 116 W. Jones Street. Suite 2109, 
Raleigh, NC 27603-8003. 

CHAPTER 37 - N.C. LOW-LEVEL 

RADIOACTIVE WASTE MANAGEMENT 

AUTHORITY' 

SECTION .0100 - GENERAL 
INFORMATION 

.0102 DEFECTIONS 

(a) The definitions contained in G.S. 104G-2 
and ISA -W NCAC 11 .1202 3G .3302 apply to 
rules contained in this Chapter. 

(b) As used in this Chapter "facility" means a 
low-level radioactive waste disposal facility as 
defined in G.S. 104G-2(7). 

(c) As used in Section .0200 the term "proximi- 
ty" means distance from a location or activity that 
could involve an impact, either positive or nega- 
tive, or beneficial or detrimental. 

(d) As used in this Chapter "community" means, 
primarily, a county of the State of North Carolina. 



However, the term may include, as well, any local 
unit of government associated with an identifiable 
locality and a permanent population, such as a city 
or a town. 

(e) Within this Chapter, "preferred site" means 
the license area and any contiguous or proximate 
land identified, at the time of preferred-site selec- 
tion, as the intended location of administrative 
outbuildings or other appurtenances associated with 
the facility, whether or not such areas are identi- 
fied in terms of precise legal description. 

(f) Within this Chapter, "license area" means 
land within the preferred site that is designated for 
the location of such disposal cells and buffer zone 
as are to be described in an application for a 
license to dispose of such low-level radioactive 
waste as North Carolina may reasonably be expect- 
ed to accept for disposal in the course of fulfilling 
its legal obligations to the Southeast Interstate 
Low-Level Radioactive Waste Management Com- 



pact, as such obligations are expressed in G.S. 
104F-1, Article V(e). 

(g) Within this Chapter, "participate in the 
Authority's selection of its preferred site" means: 

( 1 ) to take part in the Authority's formal 
pre-voting discussion and deliberations 
at a meeting announced and conducted 
pursuant to Rule .0306(h) and (i) of this 
Chapter; 

(2) to cast a vote pertaining to site selection 
at the preferred-site selection meeting 
announced and conducted pursuant to 
Rule .0306 of this Chapter; 

(3) to cast a vote for the precise boundaries 
of any preferred site chosen at a meet- 
ing announced and conducted pursuant 
to Rule .0306 of this Chapter; or 

(4) to attempt to persuade or influence any 
other member to cast his votes in these 
matters in a particular way at any time 
after the announcement of the 
preferred-site selection meeting pursu- 
ant to Rule .0306(g) of this Chapter. 

(h) Within this Chapter, "pecuniary' interest in 
any potentially suitable site under active consider- 
ation" means any of the following: 

( 1 ) personal ownership of any interest in 
real estate comprising all or any part of 
a site having undergone characterization 
and continuing thereafter as a candidate 
for selection by the Authority as its 
preferred site; 

(2) ownership of a legal or equitable inter- 
est in any business entity owning an 
interest in real estate comprising all or 



232 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



PROPOSED RULES 



13} 



any part of a site having undergone 
characterization and continuing thereaf- 
ter as a candidate for selection by the 
Authority as its preferred site; within 
this Chapter, no person shall be consid- 
ered to have an interest |n any business 
entity whose interest in such a business 
entity does not exceed one-half of one 
per cent of the capital stock of such 
business entity; 

full-time employment by any commer- 
cial business entity known to the indi- 
vidual to own any interest m real estate 
comprising all or any part of a site 
having undergone characterization and 
continuing thereafter as a candidate for 
selection by the Authority as its pre- 
ferred site; or 



14} 



receiving, either individually or as an 
owner, partner, or employee of a com- 
mercial business or professional entity, 
compensation in the amount of two 
thousand dollars ($2,000) or more 
during the preceding calendar year from 
any person or business entity owning an 
interest in real estate comprising all or 
any part of any site under consideration 
by the Authority for selection as the 
preferred site. 
£i) Within Rule .0306 of this Chapter, "signifi- 
cant pecuniary benefit" means the accrual of 
income in the amount of two thousand dollars 
($2,000) or more to an individual that would not 
have accrued to that individual but for the selection 
of a particular characterized site as the preferred 
site. 

Statutory Authority G.S. 104G-6(a)(2); 104G- 
6(a)(20); 104G-9; 104G-23(a). 

.0103 MAILING LIST 

The Authority maintains mailing lists for its 
rulemaking and public meeting activities. Individ- 
uals wishing to be notified of these activities 
should send a letter to: 

Low-Level Radioactive Waste Management 

Authority 

Mailing List 

Suit e 209 Comm e rc e Building 

19 W. Harg e tt Str ee t 

Raleigh, NC 27601 

1 16 West Jones Street 

Raleigh, NC 27603-8003 



stating the particular activity or activities for which 
notice is requested and the name, address and 
phone number of requester. A fee may be charged 
to cover the actual cost of providing this notice. 

Statutory Authority G.S. 104G-6; W4G-9; 150B- 

21.2. 

SECTION .0200 - SITE SELECTION 
CRITERIA 

.0201 INTRODUCTION 

The rules contained in this Section set forth the 
criteria which the Authority will consider in 
selecting a site for the location of a low-level 
radioactive waste disposal facility. In selecting 
this site the Authority must comply with the 
applicable procedures, criteria, and terms and 
conditions s iting crit e ria set forth in 15A +0 
NCAC 11 .1200 (Land Disposal of Radioactive 
Waste) 3G .332 8 and G.S. 104G^ which are 
incorporated in this Chapter by reference. All 
subsequent amendments and editions of the refer- 
enced material are included jn this incorporation. 
The rules contained in this Section set forth addi- 
tional criteria to be considered by the Authority in 
evaluating and selecting a site for the facility in 
accordance with G.S. 104G. The written justifica- 
tion for the criteria contained in these Rules is 
available from the Authority at the mailing address 
set out in 1 NCAC 37 .0103. 

Statutory Authority G.S. 104G-6; 104G-7; 104G-9: 
W4G-23(a); 150B-21.6. 

.0208 ADDITIONAL CRITERIA 

APPLICABLE ONLY TO SELECTION 
OF A PREFERRED SITE 

In addition to the other criteria in this Section, 
the Authority will consider the following criteria 
only in its selection of a preferred site from among 
alternative characterized sites: 

(1) the advantages of minimizing the dis- 
placement of permanent residents and 
improve ments to real property, i ncluding 
but not limited to ongoing businesses and 
commercial enterprises or utility ease- 
ments and infrastructure, if any; and 

(2) the relative costs of facility development 
on alternative sites, including but not 
limited to: 

(a) costs of acquisition of land or rights of 
way; 

(b) costs of construction and appurtenant 
improvements; and 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



233 



PROPOSED RULES 



(c) relocation costs, including those for 
permanent residents or improvements to 
real property including, but not limited 
to. ongoing businesses, commercial 
enterprises, or utility easements and 
infrastructure, if any. 

Statutory Authority G.S.104G-6; 104G-9: 104G- 
23(a). 

SECTION .0300 - SITE SELECTION 
PROCEDURE 

.0306 PREFERRED SITE 

(a) The Authority shall select a preferred site in 
accordance with G.S. 10 4 G 20 104G-9 and the 
procedures contained in this Rule. 

(b) The site shall be selected in accordance with 
the criteria set out in 1 NCAC 37 .0200. 

(c) Prior to the selection of a preferred site, the 
Authority shall conduct at least one public meeting 
in each area where a potentially suitable site has 
been selected. 

( 1 ) Notice of the meeting shall be published 
at least 45 30 days in advance of the 
meeting. Notice of the meeting shall be 
published in a newspaper of general 
circulation in the area and shall be sent 
to the Chairman of the county commis- 
sioners, the county manager and the 
county health director of any county in 
which a site has been identified: the 
mayor, the manager and the Chairman 
of the council of any municipality in 
which a potentially suitable site has 
been identified, and any person who 
has requested a copy of the notice in 
accordance with the procedure set out 
in 1 NCAC 37 .0103. The notice shall 
include the date, time and place of the 
meeting: topics to be addressed at the 
meeting: the manner in which public 
comment will be accepted; and the 
name of the individual to contact for 
further information. No meeting sched- 
uled to be conducted pursuant to this 
Rule shall be considered improperly 
noticed, however, except to the extent 
that such notice may fail to meet the 
standards expressed in G.S. 143-318. 12 
for public notice of official meetings of 
public bodies. 

(2) Should the conduct of any public meet- 
ing scheduled pursuant to this Rule be 
deemed by the Authority to be impracti- 



cable for any reason, the Authority may 
provide for the receipt of written public 
comment as an alternative to such a 
public meeting. A decision by the 
Authority to accept written public com- 
ment in lieu of conducting a public 
meeting pursuant to this Rule will be 
published as a notice in a newspaper of 
general circulation in the area in which 
a meeting was scheduled: or. should 
such local publication be impracticable 
for any reason, notice will be published 
in a newspaper of general circulation in 
a community with a population in ex- 
cess of 50.000 persons within 100 miles 
of the place at which the meeting was 
originally scheduled and will be mailed 
to the chairman of the county board of 
commissioners, the county' manager, 
and the county health director of any 
county jn which such a meeting was 
scheduled. 



(d) Information considered during the selection 
process shall include such information provided by 
the site designation review committees as may be 
transmitted to the Authority by the county boards 
of commissioners pursuant to G.S. 104G-19(f) and 
information obtained at the public meetings, and 
may include additional information which the 
Authority deems appropriate. 

(e) In making this selection, the Authority shall 
actively seek a suitable community interested in 
hosting the facility, from among the 2 or 3 sites 
selected, and shall provide information concerning: 

( 1 ) the opportunities for invoh'ement in the 
decision-making process regarding the 
construction and operation of the facili- 
ty: 

(2 1 information regarding the facility opera- 
tor and the proposed technology: and 

(3) economic incentives available to the 
host including reimbursement for lost 
land values, lost revenues, income 
availabl e from th e tru s t fund, and au- 
thorized taxes or fees. 

(f) Prior to voting on any motion to select a 
preferred site, each member of the Authority will 
be afforded an opportunity to review the following 
relevant and material data and evidence: 



01 

(4) 



G.S. 104E. 104F. and 104G: 

I NCAC 37 and 15A NCAC 11 .0400 

and .1200: 



10 CFR Part 61: 

PHASE 1 SCREENING 

IDENTIFICATION OF POTENTIAL- 



STL DY. 



234 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



PROPOSED RULES 



> 



(5) 



161 



ill 



18] 



19) 



Oil 



LY SUITABLE AREAS, prepared by 
Ebasco Services, Inc., and submitted to 
the Authority November 30, 1988; 



NCLLRW DISPOSAL SITE SCREEN- 
ING PROCESS, PHASE 2 TASK i 
IDENTIFICATION OF CANDIDATE 
AREAS, prepared by Ebasco Services, 
Inc., and submitted to the Authority 
March 20, 1989; 

SUMMARY OF QUESTION AND 
ANSWER SESSIONS, COMMUNITY 
FORUMS HELD BY THE NORTH 
CAROLINA LOW-LEVEL RADIOAC- 
TIVE WASTE MANAGEMENT AU- 
THORITY, FEBRUARY 15 TO APRIL 
25, 1989, prepared by Ebasco Services, 
Inc.; 



:24,000 scale United States Depart- 



ment of the Interior Geological Survey 
topographic maps of each of the 1 16 
potentially suitable site areas provided 
to the potential operator by Ebasco 
Services, Inc.; 

PRECHARACTERIZATION REPORT, 
RJCHMOND COUNTY FAVORABLE 
SITE AREA, NORTH CAROLINA 
LOW-LEVEL RADIOACTIVE 
WASTE MANAGEMENT AUTHORI- 
TY, presented by Chem-Nuclear Sys- 
tems, Inc.. February 21 , 1990; 
PRECHARACTERIZATION REPORT, 
WAKE COUNTY/CHATHAM COUN- 
TY FAVORABLE SITE AREA, 



NORTH CAROLINA LOW-LEVEL 
RADIOACTIVE WASTE MANAGE- 



MENT AUTHORITY, 



presented by 
Inc., February 



Chem-Nuclear Systems. 
21, 1990; 

EXECUTIVE SUMMARY. REPORTS 
OF PRECHARACTERIZATION 
FINDINGS FROM FAVORABLE 
SITE AREAS FOR NORTH 
CAROLINA'S LOW-LEVEL 
RADIOACTIVE WASTE DISPOSAL 
FACILITY, prepared by Chem-Nuclear 
Systems, Inc., February 21 , 1990; 
REVIEW OF CHEM-NUCLEAR 
T E M S 



SYS 



I N C 



PRECHARACTERIZATION DATA, 
REPORTS AND 

RECOMMENDATIONS TO 
CHARACTERIZE FAVORABLE SITE 
AREAS, prepared by Ebasco Services, 
Inc.; 



13) 



(14) 



U5i 



(12) RESPONSES TO PUBLIC 



COMMENTS RELATED TO 
PRECHARACTERIZATION 
ASSESSMENTS OF RICHMOND 
COUNTY. WAKE/CHATHAM 
COUNTY, ROWAN COUNTY AND 
UNION COUNTY FAVORABLE SITE 
AREAS, prepared for the North 
Carolina Low- Level Radioactive Waste 
Management Authority by the Authority 
Staff, Chem-Nuclear Systems, Inc., and 
Ebasco Services, Inc., April 1990; 
Information not otherwise listed in this 
Rule that is provided to the Executive 
Director by the Board of 
Commissioners of any county i_n which 
land has undergone characterization, so 
long as such information is provided to 
the Executive Director not less than 30 
days before the Authority's scheduled 
preferred site selection meeting; 
An environmental impact report, 
prepared by the potential site operator 
in compliance with G.S. 104G-1 Kb), 
related to each potentially suitable 
characterized site; 

Written reports of the potential site 
operator on each potentially suitable 
characterized site, to include a Safety 
Analysis Report; 

I nformation obtained at public meetings 

conducted pursuant to Paragraph (c) of 

this Rule, or jn written comments 

associated with such meetings, 

submitted by members of the public and 

received by the Executive Director not 

less than 30 days before the Authority's 

scheduled preferred site selection 

meeting; and 

(17) Other relevant and material evidence 

received by the Executive Director not 

less than 30 days before the Authority's 

scheduled preferred site selection 

meeting and recorded in the minutes of 

the preferred site selection meeting as 

evidence to be considered by the 

Authority. 

(g) The Authority will publicly announce the 

date of the preferred-site selection meeting no less 

than 60 days before it convenes such a meeting. 

Thirty days before such an announced meeting, no 

additional materials will be added to the data and 

evidence compiled pursuant to Paragraph (f) of this 

Rule. These provisions do not preclude the 

Chairman of the Authority from postponing the 

preferred-site selection meeting to a date and time 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



235 



PROPOSED RULES 



after those initially announced pursuant to this 
Rule. Neither do they preclude the Authority, 
upon majority vote i_n open session during the 
preferred-site selection meeting, from adopting a 
motion specifically to request or consider 
additional data and evidence. 

(h) Discussion of alternatives for preferred site 
selection. 

( 1 ) The Authority will arrive at a majority 
selection from among the voting 
alternatives at its preferred-site 
selection meeting, and will continue 
deliberations at its preferred-site 
selection meeting with only such 
temporary recesses as may be essential 
until such a majority decision is 
achieved. Recesses may be of any 
duration that the Authority, upon 
motion and majority vote, deems 
appropriate for the stated purpose. 
Recesses may be for any purpose, 
including the collection of additional 
information pertaining to a 
characterized site by the staff or any 
contractor when the Authority requests 
such additional information pursuant to 
Paragraph (g) of this Rule. 

(2) No less than 60 days before the 
preferred-site selection meeting, the 
Authority staff will file with the 
Authority a written description of each 
characterized site. Each such described 
characterized site will be considered as 
a separate alternative at the preferred 
site selection meeting. 

(3) Free discussion by the Authority 
members of the relative merits of the 
alternatives may take place at the 
Authority's preferred-site selection 
meeting at any time, except when a 
\ote is in progress. Those alternatives 
shall include: 

a separate alternative for each of the 
characterized sites described pursuant 
to Subparagraph (h)(2) of this Rule; 
none of the characterized sites: and 
undecided. 

(4) Discussion of all alternatives will 
conclude upon the Chairman's call for 
a vote on the alternatives, unless any 
member moves for continued 
discussion. Should such a motion be 
seconded, ft may be adopted by vote of 
a majority- of Authority members who 
cast votes on the question, and 



LAI 



IB] 



discussion of the alternatives will then 
continue until such time as the 
Chairman again calls for a vote on the 
alternatives and no such motion for 
continued discussion is adopted. 
Alternatively, any member may move 
to discontinue further discussion and to 
vote on the alternatives, and such a 
motion, if seconded, may be adopted by 
vote of a majority of Authority 
members who cast votes on the 



question. 
(i) Voting procedures: 



L^ 



Voting will be conducted 
alternatives at one time in 



L21 



on an 
roll-call 
format. Each member's name will be 
called, at which time that member must 
vote for one of the alternatives. No 
member may vote for more than one of 
the alternatives. fn counting votes 
among the alternatives, abstentions, if 
any, shall count as "undecided." 
Should no alternative other than 
"undecided" achieve a majority of votes 
cast, discussion of the relative merits of 
the alternatives will resume and further 
voting be conducted until an alternative 
other than "undecided" is selected by 
majority vote of those present and 
\ oting. Any alternative other than 
"undecided" receiving a majority of the 
Notes cast at the preferred-site selection 
meeting shall constitute the Authority's 
action. 

No site will be selected as the preferred 

site unless it receives the votes of a 

majority of those Authority members 

casting votes in open session. The 

Authority chairman shall vote in the 

same manner as any other member. 

{]] After the Authority's selection of a preferred 

site, it may delegate to its contractors or staff the 

task of recommending the preferred site's precise 

boundaries fn terms of a legal description. Precise 

boundaries may be drawn by reference to any of 

the criteria set out in f NCAC 37 .0200 and, in 

addition. to 



£3} 



previously existing 



boundaries. 



Recommendations 



property 
for precise 



preferred-site boundaries shall be submitted to the 
Authority for formal approval. 

(k) At no time after the Authority's 

announcement of the date of the meeting at which 
k will deliberate and vote on the selection of its 
preferred site nvjII any member knowingly 
participate in the Authority's selection of its 



236 



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May 3, 1993 



PROPOSED RULES 



preferred site, as such participation is defined in 
Rule .0102(g) of this Chapter, if that member, or 
any person in the member's immediate family: 

(1) has a pecuniary interest in any 
potentially suitable site under active 
consideration for such selection; 

(2) would receive a reasonably foreseeable 
significant pecuniary benefit from one 
of the alternative outcomes that would 
not accrue generally to persons 
similarly situated, such as employees of 
comparable employers or persons of the 
same or similar profession or 
occupation; or 

(3) is an employee of a business entity that 
would receive a reasonably foreseeable 
significant business advantage from one 
of the alternative outcomes that would 
not accrue generally to commercial 
entities in the same or similar business 
as the member's employer, 

(1) Any member of the Authority who desires to 
excuse himself or herself from participating in the 
selection of a preferred site on grounds of a 
conflict of interest will declare the existence and 
general nature of the conflict in writing. Any such 
written declarations should be submitted to the 
Executive Director no less than 60 days prior to 
the beginning of the meeting convened for the 
purpose of formal site selection pursuant to 
Paragraphs (g) and (h) of this Rule and will be 
attached to ffie minutes of the Authority's 
preferred-site selection meeting. Any member 
who excuses himself or herself from participating 
on the grounds of a conflict of interest shall be 
counted as present for purposes of constituting a 
quorum within the meaning of G.S. 104G-5(f). 

Statutory Authority G.S. 104G-4; 104G-6; 104G-9; 
104G-ll(b); 104G-19; 104G-23(a); 143-318.11; 
143-318.12. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

1\ otice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission 
intends to amend rules cited as 10 NCAC 41 P 
.0008; 41 R .0002. 

1 he proposed effective date of this action is 
August 1. 1993. 



1 he public hearing will be conducted at 10:00 
a.m. on June 2, 1993 at the Albemarle Building, 
Room 943-2, 325 N. Salisbury Street, Raleigh, NC 
27603. 

MXeason for Proposed Action: To make them 
consistent with the language and the intent of the 
American 's With Disabilities Act, and with similar 
rules which have previously been amended. 

Comment Procedures: Comments may be pre- 
sented in writing anytime before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of 
these Rules by calling or writing to Don Bowen, 
Division of Social Services, 325 N. Salisbury St. , 
Raleigh, NC 27603, (919) 733-3055. 

CHAPTER 41 - CHILDREN'S SERVICES 

SUBCHAPTER 41P - CHILD-PLACING 
AGENCIES: ADOPTION 

.0008 ADOPTIVE STUDY 

(a) The agency shall conduct an adoptive study 
with its applicants. The study process must include 
at least one office visit with the adoptive appli- 
cants, one home visit, and separate face-to-face 
interviews with each member of the household 
above six years of age. The study process must be 
a joint effort of the adoption agency and the 
applicants to determine the kind of child the 
applicants can best parent. Any study that was 
completed one year or more before placement of 
a child occurs must be updated to include current 
information about the family. The updated study 
shall focus on applicable items in Paragraph (b) of 
this Rule where change could be expected to have 
occurred. Physical examinations of family mem- 
bers must be current to within 12 months of the 
updated study. 

(b) The agency shall study the following areas 
and shall record the information in the adoptive 
applicants' record: 

(1) the applicants' motivation for adoption; 

(2) the strengths and weaknesses of each 
member of the household; 

(3) the attitudes and feelings of the family, 
extended family, and significant others 
involved with the family toward accept- 
ing adoptive children, and parenting 
children not born to them; 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



237 



PROPOSED RULES 



(4) the attitudes of the applicants toward 
the biological parents and in regard to 
the reasons the child is in need of adop- 
tion; 

(5) the applicants' attitudes toward child 
behavior and discipline; 

(6) the applicants' plan for discussing 
adoption with the child; 

(7) the emotional stability and maturity of 
applicants; 

(8) the applicants' ability to cope with 
problems, stress, frustrations, crises, 
and loss; 

(9) the applicants' ability to give and re- 
ceive affection; 

(10) the applicants' child-caring skills and 
willingness to acquire additional skills 
needed for the child's development; 

(11) the applicants' ability to provide for the 
child's physical and emotional needs; 

(12) the applicants' record of criminal con- 
victions; 

(13) the adjustment of birth children or 
previously adopted children, including 
school reports, if applicable; 

(14) report of a physical examination for 
members of the adoptive family living 
in the household within six months of 
the study that verifies no communicable 
disease, specific illness, or disabilities 
that would int e rf e r e with th e family' s 
abiliti es to par e nt a child pose a direct 
threat to a child ; 

(15) the applicants' ability to provide finan- 
cially for the child or children to be 
adopted with or without agency finan- 
cial assistance through adoption 
subsidy; 

( 16) the applicants' personal character refer- 
ences; 

(17) the applicants' religious orientation, if 
any; 

(18) the location and physical environment 
of the home; 

( 19) the plan for child care if parents work; 
and 

(20) recommendations for adoption in regard 
to the number, age. sex, characteristics, 
and special needs of children who could 
be best served by the family . 

(c) The adoptive home study must be prepared 
and typed for review by the agency's adoption 
review committee, and it must become part of the 
applicants' permanent record. 

(d) Narrative dictation during the provisional 



period of licensure must be recorded by agency 
staff providing problem pregnancy services, 
conducting adoptive studies, and providing 
post-placement services following each contact 
with the child, biological parents, and adoptive 
parents and this dictation must become part of the 
permanent record. 

Statutory Authority G.S. 131D-10.5; 143B-153. 

SUBCHAPTER 41R - LICENSING 

STANDARDS: RESIDENTIAL CAMPS 

PROVIDING FOSTER CARE FOR 

CHILDREN 

.0002 ADMINISTRATION AND 
ORGANIZATION 

(a) Children's camps providing foster care at 
either a permanent camp site or in a wilderness 
setting shall comply with the administrative and 
organizational requirements set forth in 10 NCAC 
41 N. 

(b) The Director of the children's camp shall be 
no younger than 21 years of age, have a bachelor's 
degree, and a minimum of three years experience 
in child-adolescent services. 

(c) Counselors will be at least 21 years of age 
and shall be required prior to e mployment 
assuming the position and annually thereafter to 
present a medical statement from a phy s ician 
v e rifying that th e y s uff e r from no communicabl e 
di s ea s es or di s abiliti es licensed medical provider 
that verifies no communicable disease, specific 
illness, or disabilities which would int e rf e r e with 
their ability to work with or care for childr e n pose 
a direct threat to the health or safety of children . 
The pre employm e nt statement shall be written 
based upon examination not more than six months 
prior to employment. 

(d) The children's camps shall provide staff 
necessary to insure the health and safety of each 
child in care. The camp shall meet the 
qualifications outlined as follows: 

(1) there shall be at least one counseling 
staff member on duty for every eight 
children in residence; and 

(2) during sleeping hours, the counselors 
shall be located so that no child will be 
out of calling range. 

(e) At least 15 hours of in-service training shall 
be provided annually for all staff working directly 
with the children. Training shall be specific to the 
assigned duties of staff and be designed to improve 
work with children in areas such as behavior 
management, communication and relationship 



238 



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May 3, 1993 



PROPOSED RULES 



skills, education, problem solving, first aid, meal 
preparation, trip planning, using community 
resources, goal setting and evaluation, schedule 
planning, water safety and crisis intervention. 
Records of such training will be kept on file, 
which would include the date, the subject, method 
of training, and the name of the person(s) who 
conducted the training. 

(f) A children's camp shall employ personnel 
who are responsible for supervising the staff who 
provide day-by-day guidance to each child to 
ensure the continued training and development of 
such staff in the discharge of their assigned duties. 

(g) First aid training is required for all 
counseling staff as follows: 

(1) First aid training received must be 
documented in the files for all group 
counselors and their supervisors; 

(2) First aid training must be conducted by 
a certified instructor or a licensed 
professional; and 

(3) First aid training must be current. 
Certificates or statements of training 
must be contained in the camp files and 
all first aid training is to be updated 
every three years. 

(h) Water safety activity training is required for 
all counseling staff as follows: 

(1) all group counseling staff and their 
immediate supervisors shall have 
successfully completed the basic rescue 
and water safety course, with 
certification documented in the camp 
files; and 

(2) basic rescue and water safety training 
shall be updated every three years. 

Statutory Authority G.S. 131D-10.5. 

IS otice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission 
intends to amend rules cited as 10 NCAC 42H 
.0906- .0907. .0910. 

1 he proposed effective date of this action is 
September 1, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on June 2. 1993 at the Albemarle Building. 
9th Floor Conference Room, 325 North Salisbury- 
Street. Raleigh. NC 27603. 



ixeason for Proposed Action: 
10 NCAC 42H . 0906Qi) &.0910- Conformity and 
consistency with the rules governing Licensure of 
Home Care Agencies. 

10 NCAC 42H .0906(k) & .0907 - To clarify 
certain current In-Home Aide Services require- 
ments. 

(comment Procedures: Comments may be pre- 
sented in writing anytime before or at the public- 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of 
these Rules by calling or writing to Don Bowen, 
Division of Social Services, 325 North Salisbury- 
Street, Raleigh, NC 27603, (919) 733-3055. 

CHAPTER 42 - INDIVIDUAL AND FAMILY 
SUPPORT 

SUBCHAPTER 42H - IN-HOME AIDE 
SERVICES 

SECTION .0900 - PROGRAM 
REQUIREMENTS 

.0906 ASSESSMENT AND 
REASSESSMENTS 

(a) The purpose of the initial assessment and 
regular reassessments is to determine each 
individual's or family's level of functioning and 
determine or confirm the need for In-Home Aide 
Services. 

(b) The initial assessment and reassessments 
must be conducted by an appropriate professional 
and are prerequisites to providing In-Home Aide 
Services. 

(c) An initial assessment is not a prerequisite 
when the health, safety, or well-being of an indi- 
vidual or family is at risk. In these instances the 
initial assessment must be completed within five 
working days of the onset of services. 

(d) The initial assessment and reassessment must 
be conducted in the individual's or family's home 
and must address the mental, social, environmen- 
tal, economic, and physical health status of the 
individual or family, as well as an individual's 
ability to perform activities of daily living (ADL's) 
and instrumental activities of daily living 
(IADL's). 

(e) The initial assessment and reassessments 
must be signed and dated by the professional 
responsible for assuring the completion of the 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



239 



PROPOSED RULES 



initial assessment and reassessments. 

(f) An initial assessment must be completed 
prior to the professional's development of an 
In-Home Aide Service Plan. 

(g) A full reassessment must be completed at 
least every 12 months or as the individual's or 
family's situation warrants. 

(h) A review of the individual's or family's 
situation must be completed by an appropriate 
professional at least quarterly. When Level II or 
III = Personal Care tasks are provided to a client, 
the quarterly review must be conducted in the 
client's home. If a reassessment is conducted, it 
meets the requirements for a quarterly review. 

(i) If the individual or family needs Home 
Management tasks at Level I or II, the initial 
assessment and reassessments must be completed 
by a social worker or other appropriate profession- 
al, such as a registered nurse or registered dieti- 
tian. If a registered nurse or dietitian is conduct- 
ing the initial assessment or reassessment at Level 
I or II. and the individual's or family's social 
needs appear more extensive than the assessor is 
able to adequately evaluate, then a social worker 
must be consulted for further input. If the individ- 
ual or family needs Home Management tasks at 
Level III or IV, the initial assessment and reassess- 
ments must be completed by a social worker. 

(j) If the individual or family needs Personal 
Care tasks at Level III, a registered nurse must 
complete the physical health status and the ADL 
portions of the initial assessment and reassess- 
ments. For Level II Personal Care tasks, if a 
social worker or registered dietitian is conducting 
the initial assessment or reassessment and the 
individual's or family's personal care needs appear 
more extensive than the assessor is able to ade- 
quately evaluate, then an appropriate health profes- 
sional must be consulted for further input. 

(k) Consultation with a registered nurse is 
required for Level II clients receiving Personal 
Care tasks \f the client's personal care needs have 
increased due to changes in a medically related 
problem to determine the appropriate level of 
In-Home Aide Services. 

Statutory Authority G.S. 143B-153. 

.0907 LN-HOME AIDE SERVICE PLAN 

(a) Each individual must have an In-Home Aide 
Service Plan which is based on the initial assess- 
ment and regular reassessments. 

(b) The In-Home Aide Service Plan must in- 
clude: 

(1) Measurable client outcome goals; 



(2) In-Home Aide Service level or levels to 
be provided; 

(3) Specific tasks to be performed; 

(4) Frequency of service provision; 

(5) Anticipated duration of the service; 
conditions for continuing or discontinu- 
ing service; 

(6) Signature of agency's professional staff 
developing the service plan; 

(7) A physician's signature, if required by 
a specific funding source. 

(c) When a client receiving Level II - Personal 
Care Services requests assistance with one or more 
of the following tasks: 

( 1 ) Applying ace bandages. TED's or 
binders; 



ill 



Applying or removing prosthetic devic- 
es; and 

Self-monitoring of temperature, pulse, 
blood pressure and weight; 
the In-Home Aide Service Plan must specify that 
the client has requested such assistance and that 
the client is responsible for directing these tasks 
and for making decisions regarding actions to be 
taken as a result of temperature, pulse, blood 
pressure and weight readings. 

(d) (e) All changes in tasks must be documented 
and dated on the In-Home Aide Service Plan by 
the responsible professional. 

(e) (d) Children and their families must have a 
plan that is consistent with the family's services 
plan to prevent family disruption and unnecessary 
out-of-home placement of children. 

Statutory Authority G.S. 143B-153. 

.0910 AIDE SUPERVISION 

(a) It is the responsibility of the agency provid- 
ing the In-Home Aide Service to assure that 
supervision is given to all aides. 

(b) Regardless of the level of tasks performed, 
supervisory home visits must be made at least 
twice during the first month of the aide's employ- 
ment. 

(c) Following the first month of the aide's 
employment, supervisory home visits must be 
made as follows: 

(1) Level I - at least quarterly; 

(2) Level II - at least quarterly; 

(3) Level III - at least ev e ry 60 days quar- 
terly ; 

(4) Level IV - at least every 60 days. 

(d) The frequency of aide supervision must be 
increased as needed to respond to the capabilities 
of the aide and the needs of the client. 



240 



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NORTH CAROLINA REGISTER 



May 3, 1993 



PROPOSED RULES 



(e) Each service provider agency must assure at 
least some portion of the supervisory visits occur 
when the aide is providing assistance or care to 
clients. 

(f) Aides providing In-Home Aide Services 
subject to home care agency licensure as specified 
in Rule .0913 of this Section must be supervised in 
accordance with requirements codified in 10 
NCAC 3L . 1 1 10 including subsequent amendments 
and editions. Copies of these Rules may be 
obtained from the Office of Administrative Hear- 



in gs 
2761 



Post Office Drawer 27447, Raleigh, NC 
-7447, (919) 733-2678, at a cost of two 



dollars and fifty cents ($2.50) for up to K) pages 
and fifteen cents ($0. 15) for each additional page 
at the time of adoption of this Rule. 

Statutory Authority G.S. 143B-153. 

TITLE 12 - DEPARTMENT OF JUSTICE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Criminal Justice Standards 
Division intends to adopt rules cited as 12 NCAC 
21 .0104. .0203, .0210 - .0214. .0306; amend 
rules cited as 12 NCAC 21 .0101 -.0103, .0202, 
.0204 -.0206. .0208. .0301. .0304 -.0305. No 
hearing is required. Ttiis is a revised version of 
the proposed text published in March 1, 1993 
edition of the North Carolina Register. Volume 7, 
Issue 23. 

1 he proposed effective date of this action is 
August 2, 1993. 

Reason for Proposed Action: After taking written 
comments and those oral comments made at the 
public hearing held April 2, 1993, under advise- 
ment, it was determined that some revision of the 
proposed text was necessary. TTie changes that 
have been made require that the text be repub- 
lished in the N. C. Register. 

(comment Procedures: Interested persons may 
submit written conunents from May 4, 1993 
through June 2, 1993. Such written comments 
must be delivered or mailed to the Criminal Justice 
Standards Division, P.O. Drawer 149. Raleigh, 
NC 27602-0149. 

tLdtior's Note: The agency wishes to adopt a 
new 12 NCAC 21 .0203 and renumber rules 12 



NCAC 21 . 0203 to . 0204; . 0204 to . 0205; . 0205 to 
.0206; .0207 to .0108. 

CHAPTER 2 - OFFICE OF THE 
ATTORNEY GENERAL 

SUBCHAPTER 21 - COMPANY AND 
RAILROAD POLICE 

SECTION .0100 - GENERAL PROVISIONS 

.0101 LOCATION 

The administrative office ef for the commissioning 
of company and railroad police officers and the 
certification of company police agencies is located 
in the office of the Criminal Justice Standards 
Division. Correspondence should be directed to: 
Company Police Administrator 
Criminal Justice Standards Division 

Post Office Drawer 149 

Raleigh, North Carolina 27602 -0149 

Telephone: (919) 733-2530 

Statutory Authority G.S. 74E. 

.0102 PURPOSES 

The purposes of the Attorney General's Office in 
granting company and railroad police commissions 
are: 

{+) to allow those organizations and corpora 

tions d es crib e d in G.S. 7 4 A 1 to employ 
individual s who posse s s full arr es t au 
thority, and 

{3} to rais e th e l e v e l of comp e tence of com 

pany and railroad police by establi s hing 
minimum s tandard s for obtaining a police 
commission. 

(1) to allow those organizations and corpora- 
tions described in G.S. 74E-2 to apply 
for certification as a company police 
agency; 

(2) to allow those organizations and corpora- 
tions described in G.S. 74E-2 to employ 
individuals commissioned as company 
police officers pursuant to G.S. 74E-6; 
and 

(3) to ensure the integrity, proficiency, and 
competence of company police officers 
and establishing minimum standards for 
obtaining and maintaining both company 
police officer commissions and company 
police agency certifications. 

Statutory Authority G.S. 74E-2; 74E-6. 



8:3 



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241 



PROPOSED RULES 



.0103 ADMINISTRATIVE STAFF 

The administrative staff responsible for company 
a«i — railroad police commissions and company 
police agency certifications consists of assigned 
personnel from the Criminal Justice Standards 
Division. The duties of this staff are to carry out 
the policies of the law and regulations herein and 
to actively police the individuals already commis- 
sioned as company police officers to assure com- 
pliance with the law in all respects. 

Statutory- Authority G.S. 74E-4. 

.0104 DEFINITIONS 

In addition to any definitions set forth in G.S. 



(61 



74E. the following definitions will apply through- 
out this Chapter, unless the context clearly defines 
otherwise: 

(1) "Agency Records" means those records 
specified pursuant to this Subchapter and 
that documentation required to be main- 
tained and compiled under the require- 
ments of G.S. 74E. 

(2) "Badge" means a shield bearing the title 
of "Company Police Officer" or "Rail- 
road Police". "Campus Police," or "Spe- 
cial Police" and the name of the agency 
and the officer's issued identification card 
provided by the Attorney General which 
identifies the individual as a company 
police officer. 

"Calendar Year" shall be defined solely 
for the purpose of in-service training as a 
period beginning January \_ and ending 
on December 3 1 . 
"Certification" means: 

company police officers = the authority 
granted by the North Carolina Criminal 
Justice Education and Training Stan- 
dards Commission to those individuals 
who meet the minimum requirements as 
a sworn law enforcement officer pursu- 
ant to Title 12. Chapter 9B of the North 
Carolina Administrative Code, 
(b) company police agency - the authority 
granted by the Attorney General to 
those Company Police agencies who 
meet the minimum requirements estab- 
lished for such agencies pursuant to this 
Chapter. 
(5) "Commission" as k pertains to criminal 
offenses, means a finding by an adminis- 
trative body, pursuant to the provisions 
of G.S. 150B. that a person performed 
the acts necessary to satisfy the elements 



13) 



14] 
la] 



17] 



18] 



19] 



la] 

1M 



10) 



UJQ 
02} 

1M 
ic] 



of a specified criminal offense. 
"Commissioned company police officer" 
means those individuals authorized by the 
Company Police Administrator to exer- 
cise all law enforcement powers within 
the constraints provided in G.S. 74E and 
classified as a company police officer 
pursuant to G.S. 74E-6(b). 
"Company Police Administrator" means 
the individual who serves as the head of 
the administrative staff to whom the 
Attorney General designated the authority 
to act upon any company police agency 
commission or company police agency 
certification pursuant to the provisions of 
G.S. 74E and the rules promulgated 
thereunder. Said administrator is respon- 
sible for the individual officer's or 
agency's compliance with the Company 
Police Act. 

"Company Police Agency" means any 
public or private entity, association, 
corporation or company as defined by 
G.S. 74E-2(b). 

"Conviction or convicted" means and 
includes, for the purposes of this Chap - 
ter, the entry of: 
a plea of guilty: 

a verdict or finding of guilty by a jury. 
j udge, magistrate, or other duly consti- 
tuted, established, and recognized adju- 



dicating body, tribunal, or official, 
either civilian or military; or 
a plea of no contest, nolo contendere. 
or the equivalent. 
'Department Head" means the chief 



administrator of any company police 
agency. The Department Head is to 
include the Company Police Chief or a 
designee formally appointed in writing as 
the Department Head, and who shall hold 
and maintain a commission as a company 
police officer. 

"Felony" means any offense designated a 
felony by the laws, statutes, or ordinanc- 
es of the jurisdiction in which the offense 
occurred. 
"High School" means a school accredited 



as a high school by: 
the Department or Board of Education 
of the state in which the high school is 
located: or 

the recognized regional accrediting 
body; or 
the state university of the state in which 



242 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



PROPOSED RULES 



> 



(13) 



(14) 



15) 



la] 



ihl 



the high school is located. 
"In-Service Training" means any and all 
training as prescribed in J_2 NCAC 21 
.0202 which must be satisfactorily com- 
pleted by company police officers, in 
accordance with the standards established 
therein, during each full calendar year of 
commissioning as a company police 
officer. 

"Insurance Carrier" means any entity, 
corporation, company or professional 
association as defined in G.S. 58 and 
who is authorized by the North Carolina 
Commissioner of Insurance to do busi- 
ness in North Carolina as an insurance 
carrier or underwriter. 



'Misdemeanor" means those criminal 



offenses not classified under the laws, 
statutes, or ordinances as felonies. Mis- 
demeanor offenses are classified by the 
Criminal Justice Education and Training 
Standards Commission. 
"Class A Misdemeanor" means an act 
committed or omitted [n violation of 
any common law, duly enacted ordi- 
nance, criminal statute, or criminal 
traffic code of this state, or any other 



jurisdiction, either civil or military, for 
which the maximum punishment allow- 
able for the designated offense under 
the laws, statutes, ordinances of the 
jurisdiction m which the offense oc- 
curred includes imprisonment for a 
term of not more than six months. 
Specifically excluded from this group- 
ing of "Class A misdemeanor" criminal 
offenses are motor vehicle or traffic 
offenses designated as misdemeanors 
under G.S. 20 (Motor Vehicles), simi- 
lar laws of other jurisdictions, or duly 
enacted ordinances of an authorized 
governmental entity with the exception 
of the offense of impaired driving (G.S. 
20-138. 1 ) which expressly included 
herein as a Class A Misdemeanor, if 
the defendant was sentenced under 
punishment level three [G.S. 20-179(i)l, 
level four [G.S. 20-179(j)l, or level five 
[G.S. 20- 179(101 . 

"Class B Misdemeanor" means an act 
committed or omitted in violation of 
any common law, criminal statute, or 
criminal traffic code of this state, or 
any other jurisdiction, either civil or 
military, for which the maximum pun- 



ishment allowable for the designated 
offense under the laws, statutes, or 
ordinances of the jurisdiction in which 
the offense occurred includes imprison- 
ment for a term of more than six 
months but not more than two years. 
Specifically excluded from this group- 
ing of "Class B misdemeanor" criminal 
offenses are motor vehicles or traffic 
offenses designated as being misde- 
meanors under G.S. 20 (Motor Vehi- 
cles) or similar laws of other jurisdic- 
tions with the following exceptions. 
Class B misdemeanor does expressly 
include, either first or subsequent of- 
fenses of G.S. 20- 138(a) or £bl, G.S. 
20-139 (persons under influence of 
drugs), G.S. 20-28(b) (driving while 
license permanently revoked or perma- 
nently suspended), and G.S. 20- 1 66 
(duty to stop in event of accident). 
This definition further includes a viola- 
tion of G.S. 20-138. 1 (impaired driv- 
ing), if the defendant was sentenced 
under punishment level one [G.S. 20- 
179(g)1 or punishment level two [G.S. 
2Q-I79(h)1 for the offense. 

(16) "On Duty" means that period of time 
which the commissioned company police 
officer is being compensated for his or 
her services by the officer's employer 
and ending once the officer's compensa- 
tion for his duties terminates. 

( 17) "Polygraph Examination" means an 
examination requested by the Company 
Police Administrator of ajf new and 
probationary company police applicants 
during the application process. This 
examination will be conducted by the 
State Bureau of Investigation and the 
results will be forwarded to fiie Company 
Police Administrator. In addition, the 
Company Police Administrator may 
require that a polygraph examination be 
administered to transfer applicants hold- 
ing general certification or currently 
commissioned company police officers, 
as deemed necessary. 

Statutory Authority G.S. 74E. 

SECTION .0200 - COMMISSIONING 

.0202 MINIMUM STANDARDS FOR 
COMMISSIONING COMPANY 



8:3 



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243 



PROPOSED RULES 



POLICE 

Persons eligible for a company police commis- 
sion on the basis of their employment as pre- 
scribed in G.S. 74 A 1 74E-4 . must meet the 
following requirements before a Commi ss ion 
company police commission will be granted: 

(1) b e a l e gal r e sid e nt of North Carolina be 
a citizen of the United States; 

Note: — This Rule doe s not apply 
to an applicant who is e mploy e d 
by a railroad company wh e n such 
railroad company is e ngaged in 
int e rstat e trip s through thi s Stat e 
and th e applicant is e mploy e d by 
th e railroad company as a railroad 
polic e man. 

(2) be a high school graduate or have passed 
the General Educational Development 
Test indicating high school equivalency; 
A specific exception to this educational 
requirement is granted to: 

(a) an applicant who was the holder of a 
valid company police commission on 
June 30. 1972: or 

(b) an applicant properly certified as a law 
enforcement officer by the Criminal 
Justice Education and Training Stan- 
dards Commission on March 14. 1973. 
In either case, the exception will not be 
applicable if the applicant has had more 
than a 12 month break in service; 

(3) have attained a score of not less than 80 
percent on a written examination of basic 
knowledge of laws of arrest, search, and 
investigation, and of these Rules to be 
administered by a representative of the 
North Carolina Department of Justice; 

Note: All examination questions 
will be based on the book Arrest. 
Search, and Investigation which i s 
as published by and available 
from the Institute of Government, 
the University of North Carolina 
at Chapel Hill, Chapel Hill. 
North Carolina 27514. and these 
Rules. 

Applicants will be advised in writing of 
test dates and sites at least five days prior 
to the examination. In the event an 
applicant fails to successfully complete 
the examination, only one re-test will be 
allowed. Upon an applicant's failure to 
complete the second test, the applicant 
will be ineligible to apply for or receive 
a company police commission for a peri- 



od of one year from the date of the sec- 
ond unsuccessful completion; 

(4) meet the minimum standards for criminal 
justice officers established by the North 
Carolina Criminal Justice Education and 
Training Standards Commission, appear- 
ing in Title 12. Chapter 9 of the North 
Carolina Administrative Code; which 
Standards are hereby adopted incorporat- 
ed by reference, and shall automatically 
include any later amendments and edi- 
tions of the adopt e d matt e r as authoriz e d 
by G. S. 150B 1 4 (c) referenced material . 

(5) applicants who do not hold G e n e ral 
Certification general certification as a law 
enforcement officer issued by the Crimi- 
nal Justice Education and Training Stan- 
dards Divi s ion Commission or the North 
Carolina Sheriffs Education and Training 
Standards Commission , must submit to 
and successfully complete a polygraph 
examination administered by the State 
Bureau of InvestigationT ; 

(6) be at least 20 years of age; 

(7) have produced a negative result on a drug 
screen administered according to the 
following specifications: 

(a) the drug screen shall be a urine test 
consisting of an initial screening test 
using an immunoassay method and a 
confirmatory test on an initial positive 
test result using a gas chromatography 
mass spectrometry (GC/MS) or other 
reliable initial and confirmatory tests as 
may. from time to time, be authorized 
or mandated by the Department of 
Health and Human Services for Federal 
Workplace Drug Testing Programs; 

(b) a chain of custody shall be maintained 
on the specimen from collection to the 
eventual discarding of the specimen; 

(c) the drugs whose use shall be tested for 
shall include at least cannabis, cocaine, 
phencyclidine (PCP), opiates and am- 
phetamines or their metabolites; 

(d) the test threshold values established by 
the Department of Health and Human 
Services for Federal Workplace Drug 
Testing Programs are hereby incorpo- 
rated by reference, and shall automati- 
cally include any later amendments and 
editions of the referenced material; 

(e) the test conducted shall be not more 
than 60 days old. calculated from the 
time when the laboratory reports the 



244 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



PROPOSED RULES 



> 



results to the date of employment; 

(f) the laboratory conducting the test must 
be certified for federal workplace drug 
testing programs, and must adhere to 
applicable federal rules, regulations and 
guidelines pertaining to the handling, 
testing, storage and preservation of 
samples, except that individual agencies 
may specify other drugs to be tested for 
in addition to those drugs set out in 
Item (8) of this Rule; and 

(g) every agency head shall be responsible 
for making adequate arrangements for 
the services of a Medical Review offi- 
cer (MRO) for the purpose of review of 
drug tests reported by the laboratory 
and such officer shall be a licensed 
physician; 

(8) notify the Company Police Administrator 
in writing of all criminal offenses for 
which the officer is arrested, pleads no 
contest, pleads guilty, or is found guilty 
of. This shall include all criminal offens- 
es except minor traffic offenses and shall 
specifically include any offense of Driv- 
ing Under the Influence (DUI) or Driving 
While Impaired (DWI). A minor traffic 
offense is defined, for purposes of this 
Item, as an offense where the maximum 
punishment allowable is 60 days or less. 
The notifications required must specify 
the nature of the offense, the court in 
which the case was handled and the date 
of the conviction. The notifications must 
be received by the Company Police Ad- 
ministrator within 30 days of the date of 
the case disposition. Applicants and 
officers required to notify the Company 
Police Administrator under this Item shall 
also make the same notification to their 
Department Head within 20 days of the 
date the case was disposed of in court. 
However, the notification to the Compa- 
ny Police Administrator does not excuse 
the officer from making an independent 
notification otherwise required by either 
the Criminal Justice Education and Train- 
ing Standards Commission or the 
Sheriffs' Education and Training 
Standards Commission. The notifications 
required by this section shall be required 
while the application is pending as well 
as, subsequent to a commission being 
issued; 

(9) be of good moral character; 



( 10) not have committed or been convicted of 
a crime or crimes as specified in 12 
NCAC 21 .0211(b), such that the 
applicant would be ineligible for 
commissioning as a Company Police 
officer. 

Statutory Authority G.S. 74E-4. 

.0203 APPLICATION FOR COMPANY 
POLICE AGENCY 

Each company police agency shall complete and 
submit to the Company Police Administrator the 
following items and documentation; 

(1) an application form; 

articles of incorporation, partnership 



i2i 



13) 



14} 



15) 



agreements or other agency originating 
documentation, which specifies the 
agency's law enforcement functions; 
names and addresses for all corporate 
officers, private entities and partners 
associated with the corporation or 
partnership; 

a copy of the company police agency's 
insurance policy, or if self insured, the 
certificate of self insurance (applicable to 
non-public entities only); 
statements indicating the results of a 
criminal history record check on each 
principal or corporate officer of the 
public or private entity, corporation or 
partnership, through the clerk of superior 
court in each county where the individual 
resided or maintained a residence or 
place of business over a five year period 
prior to such application. However, this 
Rule does not require the agency to 
submit a criminal history record check on 
currently commissioned company police 
officers; 

the appropriate fees as required by 12 
NCAC 21 .0206; 

a listing of the names and addresses of all 
employing businesses and institutions for 
which the company police agency has 
contracted with to provide services. 



Statutory A uthority G. S. 74E. 

^203 .0204 APPLICATION FOR 

COMPANY POLICE OFFICER 

(a) — Each company, ag e ncy or in s titution which 
e mploy s — company — polic e — offic e r s — sha+J — be 
r e gi s t e r e d with th e Company Police Admini s trator. 
In ord e r to b e r e gi s t e r e d, e ach company, ag e ncy or 



16) 

12) 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



245 



PROPOSED RULES 



institution which d es ir es to e mploy company polic e 
offic e rs shall give writt e n notic e of that int e nt to 



th^^ 



(2) 



Jompany Polic e Admini s trator. Incorporat e d 
companies s hall also submit copi e s of th e ir articl e s 
of incorporation. 

fb) Each — application — fer- — a — company — polic e 

commission shall b e s ubmitt e d to th e Company 
Polic e — Administrator — &ftd — must — contain — the 
following: 

The application for a company police officer 
must contain: 
( 1 ) a written request from the chi e f e x e cutive 
offic e r Department Head of the company, 
agency or institution requesting that a 
company police commission be issued to 
the applicant^ An oral request will not 
satisfy this requirement ; and 
if the applicant holds G e n e ral 
C e rtification general certification issued 
by the North Carolina Criminal Justice 
Education and Training Standards 
Commission or the North Carolina 
Sheriffs Education and Training 
Standards Commission , the application 
must contain the following: 
fA) Medical History Statement (Form 
F-l); 

f&) Medical Examination Report 
(Form F-2); 

f£4 Two complete fingerprint cards; 
{©) Two recent 1" x 1-1/4" 

(non-polaroid) close-up color 
photographs (not more than three 
months old) ; 

(e) fE) Satisfactory proof of a negative 
drug screen; 

(f) fF-> Satisfactory proof of s ucc ess ful 

compl e tion ef annual in se rvic e 

fir e arms r e qualification training; all in- 
service training requirements specified 
by the North Carolina Criminal Justice 
Education and Training Standards 
Commission, which standards are 
hereby incorporated by reference and 
shall automatically include any later 
amendments and editions of the 
referenced material; 

(g) fG) Authorization 
records (CP-1); 

ihi fH) Drug Screen 

(CP-2); er 
(i) Appropriate fees as specified i_n 

NCAC 21 .0206; 
(j) An appropriate background 

investigation as specified in j_2 NCAC 



(a) 

(bj 

id) 



for release of 
Consent Form 

12 



21 .0205 (Form F-8); and 
(k) Personal History Statement (Form F-3) 
(not more than three months old); or 
(3) if the applicant does not hold Gen e ral 

C e rtification general certification , the 
application must contain the following: 

(a) fA) Medical History Statement (Form 
F-l); 

(b) fB) Medical Examination Report 
(Form F-2); 

(c) fC-) Personal History Statement (not 
more than three months old). (Form 
F-3); 

(d) fEH Report of Qualification Appraisal 
Interview (Form F-4); 

(e) f&) Proof of High School graduation or 
GED; 

(f) fF4 Two complete fingerprint cards; 

(g) fG) Two recent 1" x 1-1/4" 
(non-polaroid) close-up color 
photographs (not more than three 
months old); 



(h) fH) Proof of satisfactory completion of 
a Criminal Justice Education and 
Training Standards Commission 
accredited basic law enforcement 
training course; 
(i) ■(+) Satisfactory proof of a negative 

drug screen; 
(i) fJ) Authorization for Release of 

Records (CP-1); 
(k) fK-) Drug Screen Consent Form 

(CP-2K1 
(!) Appropriate fees as specified in 12 

NCAC 21 .0206; and 
(m) Background investigation as specified 

in 12 NCAC 21 .0205 (Form F-8); or 
(4) if the applicant |s currently a 
commissioned officer under G.S. 74A at 
the time these rules are adopted, the 
applicant shall only be required to submit 
the following documentation to the 
Company Police Administrator to be 
postmarked no later than August 31, 
1993: 

(a) Application Form; 

(b) Two Photo Identification Cards; 

(c) Initial Application Fee. 

All other documentation currently valid jn the 
commissioned officer's file will be transferred to 
a new file for the officer under Chapter 74E. 

Statu ton- Authority G.S. 74E. 

Jm4 .0205 BACKGROUND 



246 



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NORTH CAROLINA REGISTER 



May 3, 1993 



PROPOSED RULES 



INVESTIGATION 

A background investigation of each applicant will 
be conducted by th e Stat e Bureau of Investigation. 
An application will b e deni e d upon a finding that 
the applicant: 

f4-) committed some act which constitutes 

d is honesty or fraud; 

(3-) committ e d — a — crime — involving — the 

infliction of injury to anoth e r person; 



m- 



lacko 



good moral character, has 

intemp e rate — habit s — er- — lack s — truth, 

hon es ty, and int e grity; 
{4) committed a felony or some other crime 

involving moral turpitud e or involving 

the illegal u se , carrying or possession of 

a dangerous weapon; 
f§-) made any fal se statement or gave any 

fals e information in conn e ction with th e 

application. 

(a) Any company police agency contemplating 
the commissioning of an applicant as a company 
police officer shall, prior to employment, complete 
a background investigation on such applicant. The 
investigation shall examine the applicant's 
character traits and habits relevant to performance 
as a company police officer and shall determine 
whether the applicant is of good moral character. 
The investigation shall be submitted to the 
Company Police Administrator utilizing the 
Commission-approved Form F-8 (Summary of 
Background Investigation). 

(b) Prior to the investigation, the applicant shall 
complete a Personal History Statement (Form F-3) 
to provide a basis for the investigation. 

(c) The Department Head shall conduct the 
applicant's background investigation. The 
Department Head shall document the results of the 
investigation and shall include in the report of 
investigation: 

( 1 ) biographical data; 
family data; 
scholastic data; 
employment data; 
interviews with 



ill 

ID 
[4] 
15] 



the applicant's 
references; and 
(6) a summary of the Department Head's 
findings and conclusions regarding the 
applicant's moral character. 
(d) The agency may use the method of 
documenting the results of the background 
investigation jt deems most appropriate to its 
needs. However, the company police program's 
"Summary of Background Investigation" form shall 
be used as a guide for minimum information 
collected and recorded by the investigator. 



(e) In the event that an individual applying for 
commission as a company police officer is the 
Department Head, he shall not conduct his own 
background investigation. The investigation must 
be performed by a city or county agency in the 
county where the company police agency has 
residency; or contract with a private investigator. 

Statutory Authority G. S. 74E-4. 

^305 .0206 FEE 

Upon notification that th e application has been 
approved, the applicant s hall forward a check in 
th e amount of fiv e dollars ($5.00) made out to the 
North Carolina Department of Justice, Criminal 
Justic e Standards Division to: 

Director, North Carolina Criminal Justic e 
Education and 

Training Standards Commission 

P.O. Drawer 1 4 9 
Ral e igh, North Carolina 27602 

(a) Upon notification that an application for a 
company police agency certification or a company 
police officer commission has been approved, the 
applicant shall forward a certified check or money 
order made out to the North Carolina De partment 
of Justice to the: 

Company Police Administrator 
Criminal Justice Standards Division 

Post Office Drawer 149 
Raleigh, North Carolina 27602-0149 

(b) The following fees shall be due and payable 
prior to the issuance of company police agency 
certification or a company police officer 
commission. 

( 1 ) Application for certification as a 
company police agency = $250.00. 

(2) Annual renewal of certification as a 
company police agency = $200.00. 

(3) Application for reinstatement of 
certification as a company police 
agency - $1,000.00. 

(4) Application for commission as a 
company police officer - $100.00. 

(5) Annual renewal of commission as a 
company police officer - $50.00. 

(6) Application for reinstatement of 
commission as a company police officer 
- $150.00. 

(c) Currently commissioned company police 
officers will be required to submit the Application 
for Commission as a company police officer fee as 
set forth in Subparagraph (b)(4) of this Rule. 

Statutory Authority G.S. 74E-12. 



8:3 



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247 



PROPOSED RULES 



J*m .0208 OATH 

Every polic e man company police officer so 
appointed shall, before entering upon the duties of 
his office, take and subscribe to the oath provided 
for in G.S. 11-11 before an officer authorized by 
G.S. 1 1-7.1 to administer oaths, and shall forward 
a copy of the executed oath within 10 days of the 
day on which the oath is subscribed to the 
Company Police Administrator. 

Statutory Authority G.S. 11-11; 74E-4. 

.0210 LIABILITY INSURANCE 

(a) Any applicant for a non-public company 
police agency certification must file with the 
Company Police Administrator, either a copy of 
the liability insurance policy or a certificate of self 
insurance, at the following address: 

Company Police Administrator 

Criminal Justice Standards Division 

Post Office Drawer 1 49 



Raleigh, North Carolina 27602-0149 



(hi 



Any notice of cancellation by an insurance 
carrier shall be delivered by certified mail, return 
receipt requested, to the following address: 
Company Police Administrator 
Criminal Justice Standards Division 

Post Office Drawer 149 
Raleigh, North Carolina 27602-0149 



Statutory Authority G.S. 74E-3. 

.0211 SUSPENSION, REVOCATION OR 
DENIAL OF AGENCY 
CERTIFICATION 

(a) A company police agency certification may 
be suspended, revoked or denied upon a finding 
that the agency has: 



01 



m 



(4] 



(5) 



f6J 



failed to pay any required fees: 

failed to produce or maintain a copy of 

a liability insurance policy or a 

certificate of self insurance: 

failed to meet any of the requirements 

for certification provided in J_2 NCAC 

21 .0203: 

failed to provide any of the required 

documentation pursuant to J_2 NCAC 21 

.0203: 

failed to allow for the reasonable 

inspection of the Company Police 

agency records pursuant to G.S. 74E- 

4£31i 

failed to ensure compliance by the 

agency's company police officers of any 

and all in-service training requirements 



ill 



& 



[9j 



as specified by 12 NCAC 21 .0202; 
failed to submit the required in-service 
training compliance reports as required 
by 12 NCAC 21 .0202; 
failed to submit any and all reports, 
notification or other information 
required or requested by the Company 
Police Administrator; 
knowingly made a material 
misrepresentation of any information 
required for certification or 
commissioning from the Company 
Police Administrator or the North 
Carolina Criminal Justice Education and 
Training Standards Commission or the 
North Carolina Sheriffs Education and 
Training Standards Commission; 
knowingly and willfully by any means 
of false pretense, deception, 
defraudation, misrepresentation or 
cheating whatsoever, obtained or 
attempted to obtain credit, training, 
certification or commissioning from the 
Company Police Administrator of the 
North Carolina Criminal Justice 
Education and Training Standards 
Commission or the North Carolina 
Sheriffs Education and Training 
Standards Commission; 



(11) a ided another in obtaining or attempting 
to obtain credit. training, or 
certification from the Company Police 
Administrator, the North Carolina 
Criminal Justice Education and Training 
Standards Commission or the North 
Carolina Sheriffs Education and 
Training Standards Commission by 
means of deceit, fraud or 
misrepresentation; or 

(12) failed to ensure that any employee not 
commissioned as a company police 
officer is not violating a prohibition set 
forth in 12 NCAC 21 .0304. 

(b) An agency whose certification has been 
suspended, revoked, or denied may appeal the 
action m accordance with the provisions of G.S. 
I50B. 



Statutory Authority G.S. 74E-4. 

.0212 SUSPENSION. REVOCATION. OR 

DENIAL OF OFFICER COMMISSION 

(a) A company police commission shall be 
revoked or denied upon a finding that the officer 
has committed or been convicted of: 



24S 



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PROPOSED RULES 



(1) any felony (unless pardoned by the 
President of the United States or a state 
Governor); or 

(2) any crime for which the authorized 
punishment could have been 
imprisonment for more than two years , 

(b) The Attorney General, or his designee, may 
revoke, suspend, or deny the commission of a 
company police officer when the Company Police 
Administrator finds that the applicant for 
commission or the commissioned company police 
officer has committed or been convicted of: 

(1) a crime or unlawful act as defined in 12 
NCAC 21 .0104(15)(b) as a Class B 
misdemeanor and which occurred after 
the date of initial certification; 

(2) a crime or unlawful act as defined in 12 
NCAC 21 .0104(15)(b) as a Class B 
misdemeanor within a five-year period 
prior to the date of application for 
certification; 

(3) four or more crimes or unlawful acts as 
defined in 12 NCAC 21 .0104(15)(b) as 
Class B misdemeanors regardless of the 
date of commission or conviction; 

(4) four or more crimes or unlawful acts as 
defined in 12 NCAC 21 .0104(15)(a) as 
a Class A misdemeanor, each of which 
occurred after the date of initial 
certification; or 

(5) four or more crimes or unlawful acts as 
defined in 12 NCAC 21 .0104(15)(a) as 
a Class A misdemeanor except the 
applicant may be certified jf the last 
conviction or commission occurred 
more than two years prior to the date of 
the application for certification. 

(c) In addition, a company police commission 
shall be revoked or denied upon a finding that the 
officer: 

(1 ) lacks good moral character; 

(2) fails to meet any of the required 
minimum standards as specified in 12 
NCAC 21 .0202; 

(3) has been terminated from employment 
with the company police agency for 
which the officer is commissioned or is 
no longer employed with such company 
police agency; 

(4) has committed any act prohibited by 12 
NCAC 21 .0304; or 

(5) termination, suspension, or revocation 
of the certification of the company 
police agency with which the officer is 
commissioned. 



(d) An officer whose certification has been 
suspended, revoked, or denied may appeal the 
action in accordance with the provisions of G.S. 
150B. 

Statutory Authority G.S. 74E-4. 

.0213 PERIOD OF SUSPENSION, 
REVOCATION OR DENIAL 

(a) When the Attorney General, or his designee, 
suspends or denies the commission of a company 
police officer, the period of sanction shall not be 
less than three years. However, the Attorney 
General, or his designee, may either reduce or 
suspend the period of sanction under 12 NCAC 21 
.0212(b) or substitute a period of probation in lieu 
of suspension of a commission following an 
administrative hearing, where the cause of sanction 
is: 

(1) commission or conviction of a crime 
other than those listed in Paragraph (a) 
of this Rule; 

(2) refusal to submit to the applicant or 
lateral transferee drug screen required 
by 12 NCAC 21 .0202(8); 

(3) production of a positive result on a 
drug screen reported to the Company 
Police Administrator where the positive 
result cannot be explained to the 
Company Police Administrator's 
satisfaction; 

(4) material misrepresentation of any 
information required for company 
police commissioning; 

(5) obtaining, attempting to obtain, aiding 
another person to obtain, or aiding 
another person attempting to obtain 
credit, training or commissioning as a 
company police officer by any means of 
false pretense, deception, defraudation, 
misrepresentation or cheating; or 

(6) failure to make either of the 
notifications as required by 12 NCAC 
21 .0202(9). 

(b) When the Attorney General, or his designee, 
suspends or denies the commission of a company 
police officer, the period of sanction shall be 
continued so long as the stated deficiency, 
infraction, or impairment continues to exist, where 
the cause of sanction is: 

(1) failure to meet or satisfy all basic 
training requirements; 

(2) failure to meet or maintain the 
minimum standards of employment 
specified in 12 NCAC 21 .0202(4); 



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249 



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(3) discharge from a criminal justice 
agency for impairment of physical or 
mental capabilities: or 

(4) failure to meet the in-service training 
requirements as prescribed by the North 
Carolina Criminal Justice Education and 
Training Standards Commission. 

Statutory Authority G.S. 74E-4; 74E-10. 

.0214 SUMMARY SUSPENSIONS 

(a) The Company Police Administrator, through 
designation by the Attorney General, may 
summarily suspend the commission of the company 
police officer before the commencement of 
proceedings for suspension or revocation of the 
certification when, in the opinion of the Company 
Police Administrator, the public health, safety, or 
welfare requires this emergency action of summarv 
suspension. The Company Police Administrator 
has determined that the following conditions 
specifically affect the public health, safety . or 
welfare, and therefore, the Company Police 
Administrator may utilize summary suspension 
when: 

( 1 i the person has committed or been 
convicted of a violation of the criminal 
code which would require a permanent 
revocation or denial of certification; or 

i2i the commissioned company police 
officer fails to satisfactorily complete 
the minimum in-service training 
requirements as prescribed in Title 12. 
Chapter 9 of the North Carolina 
Administrative Code. 

(b) A summary suspension shall be effective on 
the date specified in the order of the summary' 
suspension or upon the service of the certified 
copy of the order at the last known address of the 
person, whichever is later. The summary 
suspension shall remain in effect during the 
proceedings. 

(c) Upon verbal notification by the Company 
Police Administrator that the company police 
commission of any officer is being summarily 
suspended by written order, the Department Head 
of the company police agency shall take such steps 
as are necessary - to ensure that the officer does not 
perform duties requiring a company police 
commission through the Attorney- General. 

Statutory Authority G.S. 74E-4: 74E-I0. 

SECTION .0300 - CONDUCT OF 
COMMISSK)NED POLICEMEN 



.0301 TENURE 

A company police officer commission or 
company police agency certification shall remain 
in effect until: 



H) 
(2) 



(3) 

(4) 
(5) 



The Attorney General directs termination: 

The company police officer e mployee 

ceases to be employed a s a polic e officer 

by a company or in s titution which can 

e mploy company or railroad polic e by a 

company police agency ; 

Th e surety bond e xpir es or is canc e ll e d; 

The required liability insurance is 

terminated or suspended by the agency's 

insurance carrier: 

The need for a commission no longer 

exists; 

Evidence is presented that the person has 

committed an act which would have 

originally caused denial of the application 

or an act prohibited by Rule .0304 of this 

Section: or 

The Criminal Justice Education and 

Training Standards Commission suspends 

or revokes an officer's certification for 

cause. 



Statutory Authority G.S. 74E-4; 74E-6: 74E-10. 

.0304 PROHIBITED ACTS 

In addition to the prohibited acts set forth 

elsewhere in these R e gulation s Rules and in 

Chapter 74A 74E . the following acts are prohibited 

and may result in civil or criminal action or both: 

( 1 ) use of excess force while making an 

arr e st in the performance of their official 

duties: 



(6) 



(2) 



(a) 
(b) 



carrying a concealed weapon except: 
when on his own business property or 
at home; 

when employed as privat e polic e by th e 
admini s tration or board of trustor s of 
ftfw — public — ©f — private — institution — ef 
high e r education, whil e acting in th e 
di s charg e of tho se duti es , and whil e on 
prop e rty owned, u se d, or op e rat e d by a 
s chool, coll e g e , or univ e r s ity as a part 
of th e — education — institution: — and a 
company police officer, while on-duty 
and acting in the discharge of his 
official duties and while within those 
property jurisdiction limitations 
specifically set forth and described 
under G.S. 74E-6: 

fe-i wh e n employ e d as railroad polic e and 

tfl — the — p e rformanc e — of th e ir official 



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PROPOSED RULES 



) 



duties; 

(3) activating or operating a red light in or 
on any vehicle in this State unless such 
vehicle is exempted from the provisions 
of G.S. 20-130. 1(b); 

(4) activating or operating a blue light in or 
on any vehicle in this State except: 

(a) when operating a motor vehicle used 
primarily by company or railroad police 
in the performance of their official 
duties; and 

(b) when in property jurisdiction limitations 
specifically described under G.S. 7 4 A 2 
74E-6 ; or 

(e) wh e n in hot pursuit as d e fin e d in G.S. 

71 A 2; 

(c) when in continuous or immediate 
pursuit of a person for an offense 
committed upon real property owned by 
or in the possession or control of their 
employer or real property or in the 
possession and control of a person who 
has contracted with the employer to 
provide on-site police security 
personnel services for the property; or 

(d) during the transportation of an arrestee, 
which the company policy agency has 
taken into custody; 

(5) activating or operating a siren when 
operating a any motor vehicle used 
primarily by any company or railroad 
police agency in the performance of their 
official duties when ef-f outside of the 
property jurisdiction limitations 
specifically described under G.S. 7 4 A 2 
74E-6 unless in ket immediate and 
continuous pursuit; 

(6) r e pr ese nt representing in any manner at 
any time that he is a federal, state, 
county, or municipal law enforcement 
officer^ unless the company police officer 
is dually certified as one of the 
classifications listed in this Rule; 

(7) imp e d e impeding traffic, step stopping 
motorists or pedestrians, or in any 
manner impos e imposing or attempt 
attempting to impose his will upon 
another person as police authority unless: 

(a) he is on the property specifically 
described under G.S. 7 4 A 2 74E-6 ; or 

(b) in hot pur s uit; when m immediate and 
continuous pursuit of any person for an 
offense which occurred within the 
property jurisdiction limitations 
specifically described under G.S. 74E- 



(8) use using or attempted attempting to use 
ef authority granted under a company 
police commission pursuant to this 
Subchapter outside the political 
boundaries of North Carolina; or 

(9) violating Rule .0306 of this Section. 

Statutory Authority G.S. 74E-4; 74E-6. 

.0305 TRANSFERS 

No individual commissioned as a company er- 
railroad policeman can transfer his company police 
commission from one employing company police 
agency to another. 

Statutory Authority G.S. 74E-4; 74E-6. 

.0306 BADGES, UNIFORMS, VEHICLES 
AND OFFICER IDENTIFICATION 

(a) Badges: 

(1) All company police officers shall, when 
on duty, wear a badge bearing the name 
of the certified company police agency 
and the general title of Company Police 
Officer or the specific title of: 

(A) Railroad Police officer; or 

(B) Campus Police Officer; or 

(C) Special Police Officer. 

(2) The badge js to be carried at all times 
by the company police officer. The 
badge shall always be worn in plain 
view, except in situations where the 
officer's weapon is concealed under the 
provisions set forth in Rule .0304 of 
this Section. 

(3) No identification card shall be issued to 
or possessed by any company police 
officer except |n the form of 
identification issued to the officer by 
the Attorney General. 

(b) Uniforms: 

(1) All company police officers shall, when 
on duty, wear the uniform of the 
company police agency unless directed 
to wear other attire by the Department 
Head. 

(2) When wearing civilian attire, the 
company police officer shall comply 
with 12 NCAC 21 .0306(a). 

(3) Those company police agencies which 
employ both company police 
commissioned and non-commissioned 
security personnel shall provide the 
commissioned company police officers 



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251 



PROPOSED RULES 



with a uniform of a different color that 
would clearly distinguish the company 
police officer from other employees of 
the agency. 
(4) The uniform of the company police 
officer shall bear shoulder patches that 
contain: 
(A) the terms "Railroad Police Officer." 



IB) 



"Campus Police Officer. " or "Special 

Police Officer": and 

the name of ffie company police 

agency. 

(c) Vehicles: 

( 1 ) Each marked vehicle used by a 
company police agency subject to this 
Rule should prominently display the 
agency name and one of the following 
agency classifications: "Railroad 
Police." Campus Police." or "Special 
Police". 

(2) The Department Head shall ensure that 
employees who have not been 
commissioned as company police 
officers do not operate any marked 
vehicle used by the company police 
agency. 

(3) The Department Head shall ensure that 
employees who are not commissioned 
as a company police officer do not 
operate any company police vehicle 
with a blue light contained therein. 

(4) The Department Head shall ensure that 
any marked company police agency 
vehicle is not operated outside of those 
property jurisdiction limitations set 
forth in G.S. 74E-6. unless such 
operation is performed by an on-duty 
officer in the performance of his 
official duties and authorized by the 
Department Head. 

(d) Except as provided in Paragraph (e) of this 
Rule, all company police agencies shall comply 
with the provisions of this rule for badges, 
vehicles, uniforms, and other equipment no later 
than July 1. 1994. 

(e) The requirements contained in this Rule shall 
not apply to those agencies and commissioned 
officers who are regulated by the Tennessee Valley 
Authority. United States Nuclear Regulatory 
Commission, or the Railroad Police Certification 
Act of 1990. 

Statutory Authority G.S. 74E-7. 



liotice is hereby given in accordance with G.S. 
150B-21.2that the North Carolina Private Protec- 
tive Services Board intends to amend rule cited as 
12 NCAC 7D .0701. 

1 he proposed effective date of this action is 
August 2. 1993. 

1 he public hearing will be conducted at 11:00 
a.m. on May 18. 1993 at the State Bureau of 
Investigations . Conference Room. 3320 Old Gar- 
ner Road. Raleigh. NC 27626-0500. 

tveason for Proposed Action: Requires a licensee 
to maintain records showing that an unarmed 
security guard has been properly trained. 



Lsomment Procedures: Interested persons may 
present their views either in writing or orally at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments until 
June 2. 1993. Written comments must be delivered 
to or mailed to: James Kirk. Alarm Systems 
Licensing Board. 3320 Old Garner Rd. . P. O. Box 
29500. Raleigh. NC 27626. 



CHAPTER 7 



PRIVATE PROTECTIVE 
SERVICES 



SUBCHAPTER 7D - PRIVATE 
PROTECTIVE SERVICES BOARD 

SECTION .0700 - SECURITY GUARD 
REGISTRATION (UNARMED) 

.0701 APPLICATION FOR UNARMED 

SECURITY GUARD REGISTRATION 

(a) Each employer or his designee shall submit 
and sign an application form for the registration of 
each employee to the Board. This form shall 
be accompanied by: 

( 1 ) one set of classifiable fingerprints on an 
applicant fingerprint card; 

(2) two recent head and shoulders color 
photographs of the applicant of accept- 
able quality for identification, one inch 
by one inch in size; 

(3) statements of any criminal record ob- 
tained from the appropriate authority in 



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PROPOSED RULES 



each area where the applicant has resid- 
ed within the immediate preceding 48 
months; and 
(4) the applicant's non-refundable registra- 
tion fee. 

(b) The employer of each applicant for registra- 
tion shall give the applicant a copy of the applica- 
tion and shall retain a copy of the application and 
shall retain a copy of the application in the individ- 
ual's personnel file in the employers's office. 

(c) The applicant's copy of the application shall 
serve as a temporary registration card which shall 
be carried by the applicant when he is within the 
scope of his employment and which shall be 
exhibited upon the request of any law enforcement 
officer or other authorized representative of the 
Board. 

(d) A statement signed by a certified trainer that 
the applicant has successfully completed the train- 
ing requirements of 12 NCAC 7D .0707 shall be 
submitted to the Administrator not later than 80 
days from the hiring of an unarmed security guard. 

(e) A copy of the statement specified in Para- 
graph (d) of this Rule shall be retained by the 
licensee in the individual applicant's personnel file 
in the employer's office. 

Statutory Authority G.S. 74C-5; 74C-11; 74C-13. 



l\ otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Criminal 
Justice Education and Training Standards Commis- 
sion intends to amend rules cited as 12 NCAC 9 A 
.0103. .0107. .0201. .0204 - .0205; 9B .0101. 
. 0104. . 0202. .0211. . 0220 - . 0222. . 0309 - . 0310. 
.0403 - .0404; 9C .0303, .0308. .0601. .0603 
- .0604 and repeal rule cited as 12 NCAC 9B 
.0217. 

1 he proposed effective date of this action is 
November 1. 1993. 

1 he public hearing will be conducted at 9:00 
a.m. on May 20, 1993 at the Lobby of the John A. 
Walker Center, Wilkes Community College, Colle- 
giate Drive, Wilkesboro, North Carolina 28697. 

MXeason for Proposed Action: Tiie Standards 
Commission has authorized rule-making authority 



to amend several of its administrative rules in 
order to better define the minimum standards that 
regulate the criminal justice officer profession. 
12 NCAC 9B .0217 - The State Alcohol Law 
Enforcement Division no longer desires to have a 
special Basic Law Enforcement Training Course 
for its agents and therefore the Standards Commis- 
sion has authorized rule-making authority to repeal 
this rule. 

Comment Procedures: Any person interested in 
theses rules may present oral or written comments 
relevant to the proposed action at the Public Rule- 
Making Hearing. In addition, the record of 
hearing will be open for receipt of written com- 
ments from May 3, 1993 to June 2, 1993. Written 
comments not presented at the hearing should be 
directed to David Cashwell, Director of Criminal 
Justice Standards Division, at the address given 
below. Tlie proposed rules are available for 
public inspection and copies may be obtained at 
the following address: Criminal Justice Standards 
Division. P.O. Drawer 149, Raleigh, NC 27602 
(Room 150, Court of Appeals Bldg. . 1 W. Morgan 
St., Raleigh, NC). 

CHAPTER 9 - CRIMINAL 

JUSTICE EDUCATION AND TRAINING 

STANDARDS 

SUBCHAPTER 9A - CRIMINAL JUSTICE 

EDUCATION AND TRAINING STANDARDS 

COMMISSION 

SECTION .0100 - COMMISSION 
ORGANIZATION AND PROCEDURES 

.0103 DEFINITIONS 

The following definitions apply throughout this 
Chapter, except as modified in 12 NCAC 9A 
.0107 for the purpose of the Commission's 
rule-making and administrative hearing procedures: 

(1) "Agency" or "Criminal Justice Agency" 
means those state and local agencies 
identified in G.S. 17C-2(b). 

(2) "Alcohol Law Enforcement Agent" 
means a law enforcement officer appoint- 
ed by the Secretary of Crime Control and 
Public Safety as authorized by G.S. 
18B-500. 

(3) "Commission" means the North Carolina 
Criminal Justice Education and Training 
Standards Commission. 

(4) "Commission of an offense" means a 



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253 



PROPOSED RULES 



finding by the North Carolina Criminal 
Justice Education and Training Standards 
Commission or an administrative body 
that a person performed the acts 
necessary to satisfy the elements of a 
specified criminal offense. 
(4) (5] "Convicted" or "Conviction" means 
and includes, for purposes of this 
Chapter, the entry of: 

(a) a plea of guilty; 

(b) a verdict or finding of guilt by a jury, 
judge, magistrate, or other duly 
constituted, established, and recognized 
adjudicating body, tribunal, or official, 
either civilian or military; or 

(c) a plea of no contest, nolo contendere, 
or the equivalent. 

{§) £6] "Correctional Officer" means any 
employee of the North Carolina 
Department of Correction who is 
responsible for the custody or treatment 
of inmates. 

(6) £7] "Criminal Justice Officer(s)" means 
those officers identified in G.S. 17C-2(c) 
and further includes probation and parole 
intake officers; probation/parole 
officers-surveillance; probation/ parole 
intensive officers; and, state parole case 
analysts. 

f7) (8j "Criminal Justice System" means the 
whole of the State and local criminal 
justice agencies described in Item ( 1 ) of 
this Rule. 

{&) {9} "Criminal Justice Training Points" 
means points earned toward the Criminal 
Justice Officers" Professional Certificate 
Program by successful completion of 
commission-approved criminal justice 
training courses. Twenty classroom 
hours of commission-approved criminal 
justice training equals one criminal 
justice training point. 

f9) ( 10) "Department Head" means the chief 
administrator of any criminal justice 
agency and specifically includes any chief 
of police or agency director. 
"Department Head" also includes a 
designee formally appointed in writing by 
the Department head. 

f+04 (1 1) "Director" means the Director of the 
Criminal Justice Standards Division of 
the North Carolina Department of 
Justice. 

f+4-t ii_2]" Educational Points" means points 
earned toward the Professional Certificate 



Programs for studies satisfactorily 
completed for semester hour or quarter 
hour credit at an accredited institution of 
higher education. Each semester hour of 
college credit equals one educational 
point and each quarter hour of college 
credit equals two-thirds of an educational 
point. 
fJ-3) ( 13) "Enrolled" means that an individual 
is currently actively participating in an 
on-going formal presentation of a 
commission-accredited basic training 
course which has not been concluded on 
the day probationary certification expires. 
The term "currently actively 
participating" as used in this definition 
means: 

(a) for law enforcement officers, that the 
officer is then attending an approved 
course presentation averaging a 
minimum of twelve hours of instruction 
each week; and 

(b) for Youth Services and Department of 
Correction personnel, that the officer is 
then attending the last or final phase of 
the approved training course necessary 
for fully satisfying the total course 
completion requirements. 

f44} (14) "High School" means a school 
accredited as a high school by: 

(a) the Department or board of education 
of the state in which the school is 
located; or 

(b) the recognized regional accrediting 
body; or 

(c) the state university of the state in which 
the school is located. 

f44) (15) "In-Service Training" means any and 
all training prescribed in Subchapter 9E 
Rule .0102 which must be satisfactorily 
completed by all certified law 
enforcement officers during each full 
calendar year of certification. 

f4-S-} ( 16) "Lateral Transfer" means the 
employment of a criminal justice officer, 
at any rank, by a criminal justice agency, 
based upon the officer's special 
qualifications or experience, without 
following the usual selection process 
established by the agency for basic 
officer positions. 

f+&) (17) "Law Enforcement Code of Ethics" 
means that code adopted by the 
Commission on September 19, 1973, 
which reads: 



254 



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PROPOSED RULES 



As a law enforcement officer, my fundamental 
duty is to serve mankind the community ; to 
safeguard lives and property; to protect the 
innocent against deception, the weak against 
oppression or intimidation, and the peaceful 
against violence or disorder; and to respect the 
Constitutional constitutional rights of all «»b to 
liberty, equality, and justice. 

1 will keep my private life unsullied as an 
example to all; and will behave in a manner that 
does not bring discredit to me or to my agency. ] 
will maintain courageous calm in the face of 
danger, scorn, or ridicule; develop self-restraint; 
and be constantly mindful of the welfare of others. 
Honest in thought and deed m both in my personal 
and official life, I will be exemplary in obeying the 
laws of the land law and the regulations of my 
department. Whatever I see or hear of a 
confidential nature or that is confided to me in my 
official capacity will be kept ever secret unless 
revelation is necessary in the performance of my 
duty. 

I will never act officiously or permit personal 
feelings, prejudices, political beliefs, aspirations, 
animosities or friendships to influence my 
decisions. With no compromise for crime and 
with relentless prosecution of criminals, I will 
enforce the law courteously and appropriately 
without fear or favor, malice or ill will, never 
employing unnecessary force or violence and never 
accepting gratuities. 

I recognize the badge of my office as a symbol 
of public faith, and I accept it as a public trust to 
be held so long as I am true to the ethics of the 
police service. I will never engage in acts of 
corruption or bribery, nor will 1 condone such acts 
by other police officers. I will cooperate with all 
legally authorized agencies and their 
representatives i_n the pursuit of justice. 

1 know that I alone am responsible for my own 

standard of professional performance and will take 

every reasonable opportunity to enhance and 

improve my level of knowledge and competence. 

I will constantly strive to achieve these objectives 

and ideals, dedicating myself before God to my 

chosen profession... law enforcement. 

f+7-) ( 18) "Law Enforcement Officer" means an 

appointee of a criminal justice agency or 

of the State or of any political 

subdivision of the State who, by virtue of 

his office, is empowered to make arrests 

for violations of the laws of this State. 

Specifically excluded from this title are 

sheriffs and their sworn appointees with 

arrest authority who are governed by the 



provisions of Chapter 17E of the General 

Statutes. 

{+8) (19) "Law Enforcement Training Points" 

means points earned toward the Law 

Enforcement Officers' Professional 

Certificate Program by successful 

completion of commission-approved law 

enforcement training courses. Twenty 

classroom hours of commission-approved 

law enforcement training equals one law 

enforcement training point. 

ft9) (20) "Local Confinement Personnel" 

means any officer, supervisor or 

administrator of a local confinement 

facility in North Carolina as defined in 

G.S. 153A-217; any officer, supervisor 

or administrator of a county confinement 

facility in North Carolina as defined in 

G.S. 153A-218; or, any officer, 

supervisor or administrator of a district 

confinement facility in North Carolina as 

defined in G.S. 153A-219. 

{30) (21 ( "Misdemeanor" means those criminal 

offenses not classified under the laws, 

statutes, or ordinances as felonies. 

Misdemeanor offenses are classified by 

the Commission as follows: 

(a) "Class A Misdemeanor" means an act 

committed or omitted in violation of 

any common law, duly enacted 

ordinance, criminal statute, or criminal 

traffic code of this state, or any other 

jurisdiction, either civil or military, for 

which the maximum punishment 

allowable for the designated offense 

under the laws, statutes, or ordinances 

of the jurisdiction in which the offense 

occurred includes imprisonment for a 

term of not more than six months. 

Specifically excluded from this 

grouping of "class A misdemeanor" 

criminal offenses are motor vehicle or 

traffic offenses designated as 

misdemeanors under Chapter 20 (Motor 

Vehicles) of the General Statutes of 

North Carolina, similar laws of other 

jurisdictions, or duly enacted 

ordinances of an authorized 

governmental entity with the exception 

of the offense of impaired driving (G.S. 

20-138.1) which is expressly included 

herein as a class A misdemeanor, if the 

defendant was sentenced under 

punishment level three [G.S. 20-179(i)], 

level four [G.S. 20-179(j)], or level five 



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255 



PROPOSED RULES 



[G.S. 20-179(k)]. 

(b) "Class B Misdemeanor" means an act 

committed or omitted in violation of 

any common law, criminal statute, or 

criminal traffic code of this state, or 

any other jurisdiction, either civil or 

military, for which the maximum 

punishment allowable for the designated 

offense under the laws, statutes, or 

ordinances of the jurisdiction in which 

the offense occurred includes 

imprisonment for a term of more than 

six months but not more than two 

years. Specifically excluded from this 

grouping of "class B misdemeanor" 

criminal offenses are motor vehicles or 

traffic offenses designated as being 

misdemeanors under Chapter 20 (Motor 

Vehicles) of the General Statutes of 

North Carolina or similar laws of other 

jurisdictions with the following 

exceptions. Class B misdemeanor does 

expressly include, either first or 

subsequent offenses of G.S. 20- 138(a) 

or (b), G.S. 20-139 (persons under 

influence of drugs). G.S. 20-28(b) 

(driving while license permanently 

revoked or permanently suspended). 

and G.S. 20-166 (duty to stop in event 

of accident). This definition further 

includes a violation of G.S. 20-138.1 

(impaired driving) if the defendant was 

sentenced under punishment level one 

[G.S. 20-179(g)] or punishment level 

two [G.S. 20-179(h)] for the offense. 

f24) (22) "Parole Case Analyst" means an 

employee of the North Carolina 

Department of Correction who works 

under the supervision of the North 

Carolina Parole Commission, whose 

duties include analyzing and processing 

cases under consideration for parole, 

preparing and presenting parole 

recommendations, analyzing and 

processing executive clemency matters 

and interviewing inmates. 

<33) (23) "Pilot Courses" means those courses 

developed consistent with the curriculum 

development policy adopted by the 

Commission on May 30, 1986. This 

policy shall be administered by the 

Education and Training Committee of the 

Commission consistent with Rule 9C 

.0404. 

(33) (24) "Probation/Parole Officer" means an 



employee of the Division of Adult 
Probation and Parole whose duties 
include supervising, evaluating, treating, 
or instructing offenders placed on 
probation or parole or assigned to any 
other community-based program operated 
by the Division of Adult Probation and 
Parole. 

(34) (25)"Probation/Parole Intake Officer" 
means an employee of the Division of 
Adult Probation and Parole, other than a 
regular Probation/Parole officer, whose 
duties include conducting, preparing, or 
delivering investigations, reports, and 
recommendations, either before or after 
sentencing, upon the request or referral 
of the court, the Parole Commission, or 
the Director of the Division of Adult 
Probation and Parole. 

(3§) (26) "Probation/Parole Intensive Officer" 
means an employee of the Division of 
Adult Probation and Parole other than a 
regular probation/parole officer, 
probation/parole intake officer, and 
probation/parole officer-surveillance who 
is duly sworn, empowered with the 
authority of arrest and is an authorized 
representative of the courts of North 
Carolina and the Department of 
Correction, Division of Adult Probation 
and Parole, whose duties include 
supervising. investigating, reporting, 
counseling, treating, and surveillance of 
serious offenders in an intensive 
probation and parole program operated 
by the Division of Adult Probation and 
Parole who serves as the lead officer in 
such a unit. 

(36) (27) "Probation/Parole Officer - 
Surveillance" means an employee of the 
Division of Adult Probation and Parole 
other than a regular probation/parole and 
a probation/parole intake officer who is 
duly sworn, empowered with the 
authority of arrest and is an authorized 
representative of the courts of North 
Carolina and the Department of 
Correction, Division of Adult Probation 
and Parole whose duties include 
supervising, investigating, reporting, and 
surveillance of serious offenders in an 
intensive probation and parole program 
operated by the Division of Adult 
Probation and Parole who is trained in 
community corrections and law 



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PROPOSED RULES 



) 



enforcement techniques. 

(37) (28) "Radar" means a speed-measuring 
instrument that transmits microwave 
energy in the 10,500 to 10,550 MHz 
frequency (X) band or transmits 
microwave energy in the 24,050 to 
24,250 MHz frequency (K) band and 
either of which operates in the stationary 
and/or moving mode. "Radar" further 
means a speed-measuring instrument that 
transmits microwave energy in the 
33,400 to 36,000 MHz (Ka) band and 
operates in either the stationary or 
moving mode. 

(38) (29) "Resident" means any youth 
committed to a facility operated by the 
North Carolina Division of Youth 
Services. 

(39) (30) "School" or "criminal justice school" 
means an institution, college, university, 
academy, or agency which offers 
criminal justice, law enforcement, penal, 
correctional, or traffic control and 
enforcement training for criminal justice 
officers or law enforcement officers. 
"School" includes the criminal justice 
training course curriculum, instructors, 
and facilities. 

(30) (31) "School Director" means the person 
designated by the sponsoring institution 
or agency to administer the criminal 
justice school. 

(3-B (32) "Speed -Measuring Instruments" 
means those devices or systems formally 
approved and recognized under authority 
of G.S. l7C-6(a)(13) for use in North 
Carolina in determining the speed of a 
vehicle under observation and particularly 
includes all named devices or systems as 
specifically restricted in the approved list 
of 12 NCAC 9C .0601. 

03) (33) "Standards Division" means the 
Criminal Justice Standards Division of 
the North Carolina Department of 
Justice. 

(43) (34) "Time-Distance" means a 
speed-measuring instrument that 
electronically computes, from 
measurements of time and distance, the 
average speed of a vehicle under 
observation. 

(34) (35) "State Youth Services Officer" means 
an employee of the North Carolina 
Division of Youth Services whose duties 
include the evaluation, treatment. 



instruction, or supervision of juveniles 
committed to that agency. 

Statutory Authority G.S. 17C-2; 17C-6; 17C-10; 
153A-217. 

.0107 RULE-MAKING AND 

ADMINISTRATIVE HEARING 
PROCEDURES 

(a) In addition to the procedures set out in G.S. 
150B-20, Petitions for Rule-Making shall be 
submitted to the Commission and shall contain: 

(1) petitioner's name, address and 
telephone number; 

a draft of the proposed rule or rule 
change; 

the reason for its proposal; 
the effect of the proposal on existing 
rules or decisions; 
data supporting the proposal; 
practices likely to be affected by the 
proposal; and 

a list or description of persons likely to 
be affected by the proposed rule. 

(b) Administrative hearings in contested cases 
conducted by the Commission or an Administrative 
Law Judge (as authorized in G.S. 150B-40) shall 
be governed by: 

(1) procedures set out in Article 3A of 
G.S. Chapter 150B; 
insofar as relevant, the Rules of Civil 
Procedure as contained in G.S. 1A-1; 
insofar as relevant, the General Rules 



ill 

(31 

(4j 

£51 
161 

ill 



ill 
£31 



of Practice for the Superior and District 
Courts as authorized by G.S. 7A-34 
and found jn the Rules Volume of the 
North Carolina General Statutes. 



(c) The rules establishing procedures for 
contested cases adopted by the Office of 
Administrative Hearings as contained in Title 26, 
Chapter 3 of the North Carolina Administrative 
Code are hereby adopted by reference for 
contested cases for which this agency has authority 
to adopt rules under G.S. 150B-38(h). All such 
adoptions by reference shall automatically include 
any later amendments and editions of the adopt e d 

matt e r — as — authoriz e d — by — G.S. 150B 1 4 (c) 

incorporated material as provided by G.S. 150B- 
21.6 . 

(d) Provided, however, that if the case is 
conducted under G.S. 150B-40(b), the presiding 
officer shall have the powers and duties given to 
the Chief Administrative Law Judge or the 
presiding Administrative Law Judge in Title 26, 
Chapter 3 of the North Carolina Administrative 



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257 



PROPOSED RULES 



Code and that 26 NCAC 3 .0001(2); .0002(a)(1); 
and .0003(b) ; .0025; and .0026 shall not apply. 

(e) An applicant for certification or a certified 
officer shall have 30 days from the date of receipt 
of a notice of proposed action by the Commission 
to request an administrative hearing. 



Statutory Authority G.S. 17C-6; 
150B-21.6; 150B-38(h); 150B-40. 



I50B-20; 



SECTION .0200 - ENFORCEMENT OF 
RULES 

.0201 rNVESTIGATION OF VIOLATION OF 
RULES 

(a) If any criminal justice agency, school, 
authorized representative acting on behalf of 
either, or individual is reported to be or suspected 
of being in violation of any of these Rules, the 
Commission may take action to correct the 
violation and to ensure that similar violations do 
not occur. 

(b) Before taking action against an agency, 
school, or individual for a violation, the Standards 
Division shall investigate the alleged violation and 
present a report of its findings to the Standards 
Committee of the Commission. 

(c) The Standards Committee shall convene 
prior to the next regular meeting of the 
Commission, shall consider the report of the 
Standards Division, and shall prepar e — its 
r e oommonded disposition of th e ea se for th e full 
commi ss ion make a determination as to whether or 
not probable cause exists that the Commission's 
rules have been violated . 

(d) Th e Commi ss ion s hall con s ider fully th e 
r e commendations — of th e — Standards — Committee 
regarding all e g e d violation s of th e s e Rul e s. — The 
Commission may: 

The Standards Committee may: 

( 1 ) direct the Standards Division to conduct 
a further investigation of the alleged 
violation; 

(2) request the Attorney General to 
authorize an investigation by the State 
Bureau of Investigation of the alleged 
violation; 

(3) direct the Standards Committ ee 
Division to conduct an administrative 
hearing in the matter, pursuant to Rule 
.0107 of this Subchapter and 26 NCAC 
3; or 

(4) impose determine the appropriate 
sanctions against the violator pursuant 
to S e ction ^300 — ef — these the 



Commission's Rules. 

Statutory Authority G.S. 17C-6; 17C-10. 

.0204 SUSPENSION: REVOCATION: OR 
DENIAL OF CERTIFICATION 

(a) The Commission shall revoke the 
certification of a criminal justice officer when the 
Commission finds that the officer has committed or 
been convicted of: 

(1) a felony; or 

(2) a crime for which the authorized 
punishment included imprisonment for 
more than two years. 

(b) The Commission may suspend, revoke, or 
deny the certification of a criminal justice officer 
when the Commission finds that the applicant for 
certification or the certified officer: 

(1) has not enrolled in and satisfactorily 
completed the required basic training 
course in its entirety within prescribed 
time periods relevant or applicable to a 
specified position or job title; 

(2) fails to meet or maintain one or more 
of the minimum employment standards 
required by 12 NCAC 9B .0100 for the 
category of the officer's certification or 
fails to meet or maintain one or more 
of the minimum training standards 
required by 12 NCAC 9B .0200 or 12 
NCAC 9B .0400 for the category of the 
officer's certification; 

(3) has committed or been convicted of: 

(A) a crime or unlawful act defined in 12 
NCAC 9A .0103 as a Class B 
misdemeanor; or 

(B) four or more crimes or unlawful acts 
defined in 12 NCAC 9 A .0103 as a 
Class A misdemeanor, each of which 
occurred after the date of initial 
certification; 

(4) has been discharged by a criminal 
justice agency for commission or 
conviction of: 

(A) a motor vehicle offense requiring the 
revocation of the officer's driver's 
license; or 

(B) any other offense involving moral 
turpitude; 

(5) has been discharged by a criminal 
justice agency because the officer lacks 
the mental or physical capabilities to 
properly fulfill the responsibilities of a 
criminal justice officer; 

(6) has knowingly made a material 



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PROPOSED RULES 



misrepresentation of any information 
required for certification or 
accreditation; 

(7) has knowingly and willfully, by any 
means of false pretense, deception, 
defraudation, misrepresentation or 
cheating whatsoever, obtained or 
attempted to obtain credit, training or 
certification from the Commission; 

(8) has knowingly and willfully, by an 
means of false pretense, deception, 
defraudation, misrepresentation or 
cheating whatsoever, aided another 
person in obtaining or attempting to 
obtain credit, training or certification 
from the Commission; 

(9) has failed to make either of the 
notifications as required by 12 NCAC 
9B .0101(7); 

(10) has been removed from office by 
decree of the Superior Court in accord 
with the provisions of G.S. 128-16^ or 
has been removed from office by 
sentence of the court in accord with the 
provisions of G.S. 14-230; 

(11) fails to satisfactorily complete the 
minimum in-service training 
requirements as prescribed in 12 NCAC 
9E; 

(12) has refused to submit to an applicant or 
lateral transferee drug screen as 
required by these Rules; or 

(13) has produced a positive result on a drug 
screen reported to the Commission as 
specified in 12 NCAC 9C .0310, where 
the positive result cannot be explained 
to the Commission's satisfaction. 

(c) Following suspension, revocation, or denial 
of the person's certification, the person may not 
remain employed or appointed as a criminal justice 
officer and the person may not exercise any 
authority of a criminal justice officer during a 
period for which the person's certification is 
suspended, revoked, or denied. 

Statutory Authority' G.S. I7C-6; 17C-10. 

.0205 PERIOD OF SUSPENSION: 
REVOCATION: OR DENIAL 

(a) When the Commission revokes or denies the 
certification of a criminal justice officer, the period 
of the sanction shall be permanent where the cause 
of sanction is: 

(1) commission or conviction of a felony; 
or 



(2) commission or conviction of a crime 
for which authorized punishment 
included imprisonment for more than 
two years; or 

(3) the second suspension of an officer's 
certification for any of the causes 
requiring a five-year period of 
suspension. 

(b) When the Commission suspends or denies 
the certification of a criminal justice officer, the 
period of sanction shall be not less than five years; 
however, the Commission may either reduce or 
suspend the period of sanction under Paragraph (b) 
of this Rule or substitute a period of probation in 
lieu of suspension of certification following an 
administrative hearing, where the cause of sanction 
is: 

(1) commission or conviction of a crime 
other than those listed in Paragraph (a) 
of this Rule; or 

(2) refusal to submit to the applicant or 
lateral transferee drug screen required 
by these Rules; or 

(3) production of a positive result on a 
drug screen reported to the Commission 
under 12 NCAC 9C .0310, where the 
positive result cannot be explained to 
the Commission's satisfaction; or 

(4) material misrepresentation of any 
information required for certification or 
accreditation; or 

(5) obtaining, attempting to obtain, aiding 
another person to obtain, or aiding 
another person attempt to obtain credit, 
training or certification by any means 
of false pretense, deception, 
defraudation, misrepresentation or 
cheating; or 

(6) failure to make either of the 
notifications as required by 12 NCAC 
9B .0101(7); or 

(7) removal from office under the 
provisions of G.S. 128-16r or the 
provisions of G.S. 14-230. 

(c) When the Commission suspends or denies 
the certification of a criminal justice officer, the 
period of sanction shall be for an indefinite period, 
but continuing so long as the stated deficiency, 
infraction, or impairment continues to exist, where 
the cause of sanction is: 

( 1 ) failure to meet or satisfy relevant basic 
training requirements; or 

(2) failure to meet or maintain the 
minimum standards of employment; or 

(3) discharge from a criminal justice 



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259 



PROPOSED RULES 



agency for impairment of physical or 
mental capabilities: or 
(4) failure to meet or satisfy the in-service 
training requirements as prescribed in 
12 NCAC 9E. 

Statutory Authority G.S. I7C-6; 17C-10. 

SUBCHAPTER 9B - STANDARDS FOR 

CRIMINAL JUSTICE EMPLOYMENT: 

EDUCATION: AND TRAINING 

SECTION .0100 - MINIMUM STANDARDS 
FOR CRIMrNAL JUSTICE EMPLOYMENT 



.0101 

Every 

agency 

(1) 

(2) 

(3) 

(4, 



(5) 



(a) 



ihi 



(c) 



(d) 



MLNIMUM STANDARDS FOR 
CRIMINAL JUSTICE OFFICERS 

criminal justice officer employed by an 
in North Carolina shall: 
be a citizen of the United States; 
be at least 20 years of age; 
be of good moral character as determined 
by a thorough background investigation; 
have been fingerprinted and a search 
made of local, state, and national files to 
disclose any criminal record; 
have been examined and certified by a 
licensed physician or surgeon to meet 
physical requirements necessary to 
properly fulfill the officer's particular 
responsibilities and shall have produced a 
negative result on a drug screen 
administered according to the following 
specifications: 
the drug screen shall be urine test 
consisting of an initial screening test 
using an immunoassay method and a 
confirmatory test on an initial positive 
result using a gas chromatography/mass 
spectrometry (GC/MS) or other reliable 
initial and confirmatory tests as may. 
from time to time, be authorized or 
mandated by the Department of Health 
and Human Services for Federal 
Workplace Drug Testing Programs; 
a chain of custody shall be maintained 
on the specimen from collection to the 
eventual discarding of the specimen; 
the drug screen shall test for the 
presence of at least cannabis, cocaine, 
phencyclidine (PCP). opiates and 
amphetamines or their metabolites; 
the test threshold values established by 
the Department of Health and Human 
Services for Federal Workplace Drug 



ICI 



if, 



Testing Programs are hereby adopted 

by reference, and shall automatically 

include any later amendments and 

editions of the adopted matter as 

authorized by G.S. 150B- 14(c); 

the test conducted shall be not more 

than 60 days old, calculated from the 

time when the laboratory reports the 

results to the date of employment; 

the laboratory conducting the test must 

be certified for federal workplace drug 

testing programs, and must adhere to 

applicable federal rules, regulations and 

guidelines pertaining to the handling. 

testing, storage and preservation of 

samples, except that individual agencies 

may specify other drugs to be tested for 

in addition to those drugs set out in 

Subparagraph (c) of this Rule. 

Note: Although not presently required by these 

Rules, the Commission recommends that every 

candidate for a position as a criminal justice 

officer be examined by a licensed psychiatrist or 

clinical psychologist prior to employment, or be 

administered a psychological evaluation test battery 

to determine his mental and emotional suitability to 

perform the duties of an officer. 

(6) have been interviewed personally by the 

Department head or his representative or 

representatives, to determine such things 

as the applicant's appearance, demeanor, 

attitude, and ability to communicate; 

notify' the Standards Division of all 

criminal offenses which the officer pleads 

no contest to. pleads guilty to or is found 

guilty of. This shall include all criminal 

offenses except minor traffic offenses and 

shall specifically include any offense of 

Driving Under The Influence (DUI) or 

Driving While Impaired (DWI). A minor 

traffic offense is defined, for purposes of 

this Subparagraph, as an offense where 

the maximum punishment allowable by 

law is 60 days or less. Other offenses 

under Chapter 20 (Motor Vehicles) of the 

General Statutes of North Carolina or 

similar laws of other jurisdictions which 

shall be reported to the Standards 

Division expressly include G.S. 20- 1 39 

(persons under influence of drugs), G.S. 

20-28(b) (driving while license 

permanently revoked or permanently 

suspended) and G.S. 20-166 (duty to stop 

in event of accident). The notifications 

required under this Subparagraph must be 



(7) 



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PROPOSED RULES 



in writing, must specify the nature of the 
offense, the court in which the case was 
handled and the date of the conviction. 
The notifications required under this 
Subparagraph must be received by the 
Standards Division within 30 days of the 
date the case was disposed of in court. 
The requirements of this Subparagraph 
shall be applicable at all times during 
which the officer is certified by the 
Commission and shall also apply to all 
applications for certification. Officers 
required to notify the Standards Division 
under this Subparagraph shall also make 
the same notification to their employing 
or appointing executive officer within 20 
days of the date the case was disposed of 
in court. The executive officer, provided 
he has knowledge of the officer's 
conviction(s), shall also notify the 
Standards Division of all criminal 
convictions within 30 days of the date the 
case was disposed of in court. Receipt 
by the Standards Division of a single 
notification, from either the officer or the 
executive officer, is sufficient notice for 
compliance with this Subparagraph. 

Statutory Authority G.S. 17C-6; 17C-I0. 

.0104 MEDICAL EXAMINATION 

(a) Each applicant for employment as a criminal 
justice officer shall complete the Commission's 
Medical History Statement Form within one year 
prior to employment by the employing agency and 
shall be examined by either a physician or surgeon 
licensed to practice medicine in North Carolina or 
by a physician or surgeon authorized to practice 
medicine in accordance with the rules and 
regulations of the United States Armed Forces 
within — arte — y-eaf — prior to — e mploym e nt — by — the 
employing ag e ncy to help determine one's fitness 
in carrying out the physical requirements of the 
criminal justice officer position . 

(b) The examining physician shall record the 
results of the examination on the Commission's 
Medical Examination Report Form and shall 
include notation of any evidence of past or present 
defects, diseases, injuries, operations, or 
conditions of an abnormal or unusual nature. 

Statutory Authority G.S. 17C-6; 17C-10. 

SECTION .0200 - MINIMUM STANDARDS 
FOR CRIMINAL JUSTICE SCHOOLS AND 



CRIMINAL JUSTICE TRAINING 

PROGRAMS OR COURSES OF 

INSTRUCTION 

.0202 RESPONSIBILITIES OF THE 
SCHOOL DIRECTOR 

(a) In planning, developing, coordinating, and 
delivering each commission-accredited criminal 
justice training course, the school director shall: 

(1) Formalize and schedule the course 
curriculum in accordance with the 
curriculum standards established by the 
Commission. 

(A) The school director shall schedule 
course presentation for delivery as 
follows: 

(i) Each basic training course 
required for criminal justice 
officer certification shall be 
presented with a minimum of 12 
hours of instruction each week 
during consecutive calendar weeks 
except that there may be as many 
as three one-week breaks until 
course requirements are 
completed. This Rule shall not 
apply to presentations of the 
"Basic Training—State Youth 
Services Officers" course. 

(ii) The "Criminal Justice Instructor 
Training Course" shall be 
presented with a minimum of 40 
hours of instruction each week 
during consecutive calendar weeks 
until course requirements are 
completed. 

(B) In the event of exceptional or 
emergency circumstances, the 
Director of the Standards Division 
may, upon written finding of 
justification, grant a waiver of the 
minimum hours requirement. 

(2) Select and schedule qualified instructors 
who are properly certified by the 
Commission. The selecting and 
scheduling of instructors is subject to 
special requirements as follows: 

(A) In the presentation of a delivery of the 

"Basic Recruit Training—Law 

Enforcement" course: 

(i) No instructor shall be scheduled 

to instruct in a high liability topic 

area as identified under Rule 

.0304(a) of this Subchapter unless 

specifically certified for that topic 



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PROPOSED RULES 



area by the Commission. 

(ii) No single individual may be 
scheduled to instruct more than 35 
percent of the total hours of the 
curriculum during any one 
delivery of the "Basic Recruit 
Training--Law Enforcement" 
course presentation. 

(iii) Where the school director shows 

exceptional or emergency 

circumstances and the school 

director documents that an 

instructor is qualified to instruct 

more than 35 percent of the total 

hours of the curriculum, the 

Director of the Standards Division 

may grant written approval for the 

expansion of the individual 

instructional limitation. 

(B) In the presentation of a delivery of the 

"Criminal Justice Instructor Training 

Course": 

(i) At least one evaluator of trainee 
performance shall be scheduled 
for each six trainees and in course 
delivery no evaluator will be 
assigned more than six trainees. 

(ii) Each evaluator, as well as the 
instructors, must have successfully 
completed a commission- 
accredited instructor training 
course or an equivalent instructor 
training course as determined by 
the Commission. 

(iii) Each instructor and evaluator 
must document successful 
participation in a special program 
presented by the Justice Academy 
for purposes of familiarization and 
supplementation relevant to 
delivery of the instructor training 
course and trainee evaluation. 

(3) Provide each instructor with a 
commission-approved course outline 
and all necessary additional information 
concerning the instructor's duties and 
responsibilities. 

(4) Review each instructor's lesson plans 
and other instructional materials for 
conformance to established commission 
standards and to minimize repetition 
and duplication of subject matter. 

(5) Arrange for the timely availability of 
appropriate audiovisual aids and 
materials, publications, facilities and 



equipment for training in all topic 
areas. 

(6) Develop, adopt, reproduce, and 
distribute any supplemental rules, 
regulations, and requirements 
determined by the school to be 
necessary or appropriate for: 

(A) effective course delivery; 

(B) establishing responsibilities and 
obligations of agencies or departments 
employing course trainees; and 

(C) regulating trainee participation and 
demeanor and ensuring trainee 
attendance and maintaining 
performance records. 

A copy of such rules, regulations and 
requirements shall be submitted to the 
Director of the Standards Division as an 
attachment to the Pre-delivery Report of 
Training Course Presentation. A copy 
of such rules shall also be given to each 
trainee and to the executive officer of 
each trainee's employing agency or 
department at the time the trainee 
enrolls in the course. 

(7) If appropriate, recommend housing and 
dining facilities for trainees. 

(8) Not less than 15 days before 
commencing delivery of the "Basic 
Recruit Training— Law Enforcement" 
course, submit to the commission a 
Pre-delivery Report of Training Course 
Presentation (Form F-10A) along with 
the following attachments: 

(A) A comprehensive course schedule 
showing arrangement of topical 
presentations and proposed 
instructional assignments. 

(B) A copy of any rules, regulations, and 
requirements for the school and, when 
appropriate, completed applications 
for Professional Lecturer 
Certification. 

(C) The Director of the Standards 
Division shall review the submitted 
Pre-delivery Report together with all 
attachments and notify the school 
director of any apparent deficiency. 

(9) Not less than 30 days before 
commencing delivery of the "Criminal 
Justice Instructor Training Course", 
submit to the commission a Pre-delivery 
Report of Training Course Presentation 
with the following attachments: 

(A) The name and credentials of the 



262 



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PROPOSED RULES 



> 



school director. 

(B) A comprehensive course schedule 
showing arrangement of topical 
presentations and proposed 
instructional assignments. 

(C) The names and credentials of all 
instructors and evaluators. 

(D) A copy of any rules, regulations, and 
requirements for the school. 

(E) The Director of the Standards 
Division shall review the submitted 
Pre-delivery Report together with all 
attachments and notify the school 
director of any apparent deficiency. 

(10) Administer the course delivery in 
accordance with commission-approved 
procedures, guidelines, and standards 
and ensure that the training offered is 
as effective as possible. 

(11) The school director or designated 
certified instructor shall Monitor 
monitor the presentations of all 
probationary instructors during course 
delivery and prepare formal written 
evaluations on their performance and 
suitability for subsequent instructional 
assignments. These evaluations shall be 
prepared on commission-approved 
forms and forwarded to the 
Commission. Based on this evaluation, 
the school director shall have the added 
responsibility for recommending 
approval or denial of requests for 
General Instructor Certification. 

(12) The school director or designated 
certified instructor shall Monitor 
monitor the presentations of all other 
instructors during course delivery and 
prepare formal written evaluations on 
their performance and suitability for 
subsequent instructional assignments. 
Any designated certified instructor who 
is evaluating the instructional 
presentation of another instructor shall, 
at a minimum, hold certification in the 
same instructional topic area as that for 
which the instructor is being evaluated. 
Instructor evaluations shall be prepared 
on commission-approved forms in 
accordance with commission standards. 
These evaluations shall be kept on file 
by the school for a period of three 
years and shall be made available for 
inspection by a representative of the 
Commission upon request. 



(13) Administer or designate a qualified 
person to administer appropriate tests as 
determined necessary at various 
intervals during course delivery: 

(A) to determine and record the level of 
trainee comprehension and retention 
of instructional subject-matter; and 

(B) to provide a basis for a final 
determination or recommendation 
regarding the minimum degree of 
knowledge and skill of each trainee to 
function as an inexperienced criminal 
justice officer; and 

(C) to determine subject or topic areas of 
deficiency for the application of Rule 
.0405(a)(3) of this Subchapter. 

(14) Maintain direct supervision, direction, 
and control over the performance of all 
persons to whom any portion of the 
planning, development, presentation, or 
administration of a course has been 
delegated. 

(15) During a delivery of the "Basic Recruit 
Training— Law Enforcement" course, 
make available to authorized 
representatives of the Commission four 
hours of scheduled class time and 
classroom facilities for the 
administration of a written examination 
to those trainees who have satisfactorily 
completed all course work. 

(16) Report the completion of each 
presentation of a commission-accredited 
criminal justice training course to the 
Commission as follows: 

(A) "Basic Recruit Training--Law 
Enforcement". Not more than 10 
days after receiving from the 
Commission's representative the 
Report of Examination Scores, the 
school director shall submit to the 
Commission a Post-delivery Report of 
Training Course Presentation (Form 
F-10B). 

(B) Special arrangements shall be made 
between the school director and the 
Director of the Standards Division for 
the reporting of law enforcement 
achievement in a 
commission-accredited Public Safety 
Officer course. 

(C) Upon successful completion of a 
commission-accredited training course 
by correctional, state youth services, 
or probation/parole trainees, the 



8:3 



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263 



PROPOSED RULES 



(1) 

mi 



(iii) 



(iv) 



director of the school conducting such 
course shall notify the Commission of 
the satisfactory achievement of 
trainees by submitting a monthly 
Report of Training Course 
Completion. 
(D) "Criminal Justice Instructor Training 
Course". Not more than 10 days 
after course completion the school 
director shall submit to the 
Commission a Post-delivery Report 
containing the following: 
Class enrollment roster. 
Course schedule with designation 
of instructors and evaluators 
utilized in delivery. 
Scores recorded for each trainee 
on both the 80 minute skill 
presentation and the final written 
examination. 

Designation of trainees who 

successfully complete the course 

in its entirety and whom the 

school director finds to be 

competent to instruct. 

(b) In addition to Paragraph (a) of this Rule, in 

planning, developing, coordinating and delivering 

each commission-accredited radar, radar and 

time-distance or time-distance speed measurement 

operator training course or re-certification course, 

the school director shall: 

( 1 ) select and schedule qualified radar or 
time-distance speed measurement 
instrument instructors who are properly 
certified by the Commission as 
instructors for the specific speed 
measurement instruments in which the 
trainees are to receive instruction. The 
following requirements apply to 
operator certification training: 

(A) Provide to the instructor the 
Commission form(s) for motor-skill 
examination on each trainee; 

(B) Require the instructor to complete the 
motor-skill examination form on each 
trainee indicating the level of 
proficiency obtained on each specific 
instrument: 

(C) Require each instructor to sign each 
individual form and submit the 
original to the school director. 

(2) not less than 30 days before the 
scheduled starting date submit to the 
Director of the Standards Division a 
Request for Training Course Presentation. 



i Hi 



(3; 



(A) The request shall contain a period of 
course delivery including the 
proposed starting date, course location 
and the number of trainees to be 
trained in each type of approved 
speed-measurement instrument; 
The Director of the Standards 
Division shall review the request and 
notify the school director of the 
accepted delivery period unless a 
conflict exists with previously 
scheduled programs, 
during the delivery of the training 
course, make available to authorized 
representatives of the Commission two 
hours of scheduled class time and 
classroom facilities for the 
administration of a written examination 
to the trainee. 

upon completing delivery of the 
Commission-accredited course, and not 
more than 10 days after receiving from 
the Commission's representative the 
Report of Examination Scores, the 
school director shall notify the 
Commission regarding the progress and 
achievements of each trainee by 
submitting a Post-delivery Report of 
Training Course Presentation. This 
report shall include the original 
motor-skill examination form(s) 
completed and signed by the certified 
instructor responsible for administering 
the motor-skill examination to the 
respective trainee. 



Statutory Authority G.S. 17C-6. 



(4) 



264 



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PROPOSED RULES 



.0211 CRIMINAL JUSTICE TD/SMI INSTRUCTOR TRAINING COURSE 

(a) Each time-distance speed measurement instrument instructor training course shall consist of a minimum 
of 30 hours of instruction in addition to the requirements set forth in 12 NCAC 9B .0210(a). This additional 
30 hours shall provide the trainee with the skills and knowledge to proficiently perform the function of a 
criminal justice time-distance speed measurement instrument instructor. This course shall be for a period not 
to exceed eight consecutive weeks. 

(b) Each applicant for the time-distance speed measurement instrument instructor training course shall meet 
the minimum entry requirements of 12 NCAC 9B .0210(c) and L2 NCAC 9JB .0309, and in addition thereto 
shall have successfully completed the training course of 12 NCAC 9B .0210(d). 

(c) Each time-distance speed measurement instrument instructor training course shall include all topic areas 
specified in 12 NCAC 9B .0210(d). The additional 30 instructional hours in the time-distance speed 
measurement instrument instructor training course shall include but not be limited to the following topic areas' 
and corresponding instructional hours and incorporate the corresponding minimum trainee performance 
objectives within the course curriculum: 

( 1 ) Overview and Introduction to Time-Distance Speed Measurement 

Instruments (TDSMI) Training 2 Hours 

(A) description of the objectives of a time-distance speed measurement 
instrument training program; 

(B) identification of specific requirements for TDSMI instructors, 
operators and equipment as set forth in G.S. 17C and G.S. 8-50.2. 

(2) Basic Principles of Time-Distance Speed Measurement Instruments 3 Hours 

(A) description of the basic principles on which time-distance speed 
measurement instruments operate; 

(B) explanation of the procedures used in calibrating time-distance 
speed measurement instruments; 

(C) description of the basic operating procedures required when 
employing time-distance speed measurement instruments. 

(3) Legal and Operational Consideration of Time-Distance Speed 

Measurement Instruments 4 Hours 

(A) demonstration of basic skills in preparing and presenting 

evidence and testimony concerning speed enforcement and speed measurement; 

(B) identification and description of accepted operating procedures 

for the proper use of time-distance speed measurement instruments; 

(C) identification and description of factors which may affect the selection 
of various speed measurement sites. 

(4) Classroom Familiarization with Specific Time-Distance Speed 

Measurement Instruments: I Hour 

demonstration of the familiarity with the functions and operating 
procedures of approved time-distance speed measurement instruments. 

(5) Moot Court 2 Hours 

(A) preparation of complete, concise and effective direct testimony 
for time-distance speed measurement instrument cases; 

(B) respond properly and effectively to cross examination. 

(6) Field Operation of Specific Time-Distance Speed Measurement Instruments 8 Hours 

(A) description of the functional components of approved time-distance 
speed measurement instruments; 

(B) description of the setup, calibration and operation procedures of 
approved time-distance speed measurement instruments; 

(C) operation and performance of all procedural requirements of actual 
patrol with approved time-distance speed measurement instruments. 

(7) Motor-Skill Performance Testing: 8 Hours 
(A) demonstration of the ability to successfully setup, calibrate and 

operate approved time-distance speed measurement instruments for 
which the trainee seeks certification in accordance with criteria 
specified on a standardized trainee performance evaluation fonriTJ 



8:3 NORTH CAROLINA REGISTER May 3, 1993 265 



PROPOSED RULES 



(B) demonstration by the trainee of the ability to estimate vehicular 
speed using criteria specified on a standardized trainee evaluation 
form, if the 30 hour time-distance instructor course concludes more 
than six weeks after the trainee successfully completes the training 
specified in 12 NCAC 9B .0210. 

(8) Course Review 1 Hour 

(9) Written Test 1 Hour 



Total 30 Hours 

(d) The "Time-Distance Operator Course" as published by the North Carolina Justice Academy is hereby 
adopted by reference, and shall automatically include any later amendments and editions of the adopted matter 
as authorized by G.S. 150B- 14(c). to apply as basic curriculum for the criminal justice time-distance speed 
measurement instrument instructor training course for time-distance speed measurement instructors as 
administered by the Commission. Copies of this publication may be inspected at the office of the agency: 

Criminal Justice Standards Division 

North Carolina Department of Justice 

1 West Morgan Street 

Court of Appeals Building 

Post Office Drawer 1 49 

Raleigh. North Carolina 27602 

and may be obtained at cost at the address in this Rule. 

(e) Commission-accredited schools that are accredited to offer the "Criminal Justice TD/SMI Instructor 
Training Course" are: The North Carolina Justice Academy. 

Statutory Authority G.S. 17C-6. 

.0217 BASIC TRAINING -- ALCOHOL LAW ENFORCEMENT AGENTS 

fa-) — Th e basic training cours e for alcohol law e nforc e m e nt agent s appoint e d by the Secretary of Crim e 
Control and Public Saf e ty as authoriz e d und e r Gen e ral Statut e 1 8 B 500 shall consist of a minimum of 601 
hour s of instruction design e d to provid e th e trainee with th e s kills and knowl e dg e to perform thos e tasks 
e ss e ntial to function as an alcohol law e nforcem e nt ag e nt. 

(b) Each ba s ic training cour se for alcohol law e nforc e m e nt ag e nts shall includ e th e following id e ntified topic 
ar e a s and minimum instructional hours for e ach ar e a: 

fH Ori e ntation 3 Hours 

(34 Physical Training 75 Hours 

f3-> History of ALE 1 Hour 

(4) Constitutional Law. Gov e rnm e nt and Civil Right s 1 4 Hour s 

•(-§-) Firearms 56 Hour s 

f6) Knowl e dg e of Law. Gen e ral Criminal Law and Evidence 36 Hours 

fh Chapt e r 18B 4 Hours 

(8) ABC R e gulation s 32 Hours 

f9) Controll e d Substanc es Act Enforc e m e nt 16 Hour s 

f+0-) First R e spond e r 2 4 Hours 

f44-) ALE V e hicl e Op e ration s 4 Hours 

f+3-) Arr e st. S e arch and S e izur e 4 Hour s 

{4-^} Ag e nt Survival Enforc e m e nt P s ychology 4 Hours 

fl-4) Enforc e m e nt Sociology 4 Hour s 

fl-5-) Str e ss Manag e m e nt 4 Hour s 

f46) D e f e n s ive Tactics M Hours 

f4^-) Civil Liability 4 Hour s 

f4-8-> DU1 and Motor V e h i cl e Law 1 4 Hour s 

f49-) ALE Investigations 2 4 Hour s 

(30) Writt e n Communication s 4 Hour s 



266 8:3 NORTH CAROLINA REGISTER May 3, 1993 



PROPOSED RULES 



(3-H Criminal Justice Syst e m 2 4 Hours 

{32) Verbal Communication s 12 Hours 

(33) Evidenc e 2 Hours 

{54-} Juvenil e Law 16 Hour s 

f35) Obs e rvation 6 Hours 

(36) Math 2 Hour s 

f23} ALE Tactical Op e rations 4 Hour s 

(38) Hazardou s Devic e s, Explosiv e s and Compon e nt s 4 Hours 

{39) Community R e lations. Human R e lations, Ethics and Court e sy 8 Hours 

00) ALE Policy and Proc e dur e 8 Hour s 

Statutory Authority G.S. 17C-6; 17C-10. 

.0220 RE-CERTIFICATION COURSE FOR RADAR OPERATORS 

(a) Each re-certification course for radar operators shall consist of a minimum of 8 hours of review and 
testing designed to determine if the individual possesses the skills and knowledge to continue to proficiently 
perform those tasks essential to function as a radar operator. This course shall be presented within a period 
not to exceed one week. 

(b) Each applicant for a radar operator re-certification course shall-f meet the requirements of 12 NCAC 9C 
.0308(c) and (d). 

f4-) B e curr e ntly c e rtified in a probationary or g e n e ral s tatu s a s a law e nforc e m e nt offic e r. 
f2-) Have b ee n c e rtifi e d a s a radar operator within th e thr e e y e ars pr e c e ding th e compl e tion dat e of th e 
re certification cours e . 

(c) Sh e riffs, deputy sh e riffs and f e d e ral Federal law enforcement personnel shall be allowed to participate 
in radar operator re-certification courses at the discretion of the school director without meeting the 
requirements specified in 12 NCAC 9B ,0220(b )( 1 ) and (b)(2) . but such personnel must have successfully 
completed the radar operator training course (12 NCAC 9B .0212) or the radar TD/SMI operator training 
course (12 NCAC 9B .0213)^. within th e thr e e y e ars pr e c e ding th e compl e tion dat e of th e r e c e rtification 
cours e . 

(d) Each radar operator re-certification course shall include the following topic areas and corresponding 
testing hours and incorporate the corresponding minimum trainee performance objectives within the course 
curriculum: 

(1) Course Orientation: 1/2 Hour 

(A) registration and description of course; 

(B) review of the performance requirements for successful completion 
of the radar operator re-certification course. 

(2) Legal and Operational Considerations: 1 1/2 Hours 

(A) review of operator testing and calibration procedures; 

(B) review of required operating procedures of radar instruments. 

(3) Motor-Skill Performance Testing: 4 Hours 

(A) demonstration of the ability to properly setup, test, 
calibrate and operate the radar instruments for which the 
operator seeks re-certification in accordance with criteria 
specified on standardized performance evaluation forms; 

(B) demonstration of the ability to estimate vehicular speed in 

accordance with criteria specified on standardized performance evaluation forms. 

(4) Written Test 2 Hours 



Total 8 Hours 

Statutory Authority G.S. 17C-6. 

.0221 RE-CERTIFICATION COURSE FOR RADAR AND TD/SMI OPERATORS 

(a) Each re-certification course for radar and time-distance speed measurement instrument operators shall 
consist of a minimum of 13 hours of review and testing designed to determine if the individual possesses the 

8:3 NORTH CAROLINA REGISTER May 3, 1993 267 



PROPOSED RULES 



skills and knowledge to continue to proficiently perform those tasks essential to function as a radar and 
time-distance operator. This course shall be presented within a period not to exceed one week. 

(b) Each applicant for a radar and time-distance operator re-certification course shalk meet the requirements 
of 12 NCAC 9C .0308(c) and (d). 

ft) B e curr e ntly c e rtifi e d in a probationary or g e n e ral status as a law e nforc e m e nt officer. 
(3) Have boon certifi e d a s a radar and tim e distanc e op e rator within the thr ee y e ars pr e c e ding the 
compl e tion dat e of th e r e c e rtification course. 

(O Sh e riffs, d e puty sh e riff s , and f e d e ral Federal law enforcement personnel shall be allowed to participate 
in radar and time-distance operator re-certification courses at the discretion of the school director without 
meeting the requirements specified in 12 NCAC 9B ,0221(b) ( 1 ) and (b)(2) . but such personnel must have 
successfully completed the radar and TD/SMI operator training course (12 NCAC 9B .0213) or the radar 
operator training course (12 NCAC 9B .0212) and the TD/SMI operator training course (12 NCAC 9B .0214)^ 
within th e thr ee years preceding th e compl e tion dat e of the re c e rtification cour se . 

(di Each combined re-certification course for radar and time-distance speed measurement instrument 
operators shall include all topic areas specified in 12 NCAC 9B .0220(d). The additional 5 hours in the 
time-distance speed measurement instrument operators re-certification course shall include but not be limited 
to the following topic areas and corresponding testing hours and incorporate the corresponding minimum 
trainee performance objectives within the course curriculum: 

(1) Motor-Skill Performance Testing: 4 Hours 
Demonstration of the ability to properly setup, test, calibrate, and operate the 

time-distance instruments for which the operator seeks re-certification in 
accordance with criteria specified on standardized performance evaluation forms. 

(2) Written Test 1 Hour 



Total 5 Hours 

Statutory Authority G.S. 17C-6. 

.0222 RE-CERTIFICATION COURSE FOR TD/SMI OPERATORS 

(a) Each re-certification course for time-distance speed measurement instrument (TD/SMI) operators shall 
consist of a minimum of 8 hours of review and testing designed to determine if the individual possesses the 
skills and knowledge to continue to proficiently perform those tasks essential to function as a time-distance 
operator. This course shall be presented within a period not to exceed one week. 

(b) Each applicant for a time-distance operator re-certification course shall-r meet the requirements of 12 
NCAC 9C .0308(ci and (d). 

f4-> B e curr e ntly c e rtifi e d in a probationary or g e n e ral status as a law e nforc e m e nt officer. 
f2} Have boon certifi e d a s a tim e di s tanc e op e rator within th e thr e e y e ars pr e c e ding th e completion date 
of th e r e c e rtification cour se . 
(ci Sh e riff s , d e puty s h e riffs and f e d e ral Federal law enforcement personnel shall be allowed to participate 
in time-distance operator re-certification courses at the discretion of the school director without meeting the 
requirements specified in 12 NCAC 9B ,0222(b) ( 1) and (b)(2) . but such personnel must have successfully 
completed the radar and TD/SMI operator training course (12 NCAC 9B .0213) or the TD/SMI operator 
training course (12 NCAC 9B .0214k within th e thr ee y e ar s pr e ceding th e compl e tion date of the 
r e c e rtification cours e . 

id) Each time-distance operator re-certification course shall include the following topic areas and 
corresponding testing hours and incorporate the corresponding minimum trainee performance objectives within 
the course curriculum: 

(1) Course Orientation: 1/2 Hour 

(A) registration and description of course; 

(B) review of the performance requirements for successful 
completion of the TD/SMI operator re-certification course. 

(2) Legal and Operational Considerations: 1 1/2 Hours 
(Ai review of operator testing and calibration procedures; 

(Bi review of required operating procedures of time-distance instruments. 

(3) Motor-Skill Performance Testing: 4 Hours 



268 8:3 NORTH CAROLINA REGISTER May 3, 1993 



PROPOSED RULES 



(A) demonstration of the ability to properly setup, test, calibrate, 
and operate the time-distance instruments for which the operator 
seeks re-certification in accordance with criteria specified on 
standardized performance evaluation forms; 

(B) demonstration of the ability to estimate vehicular speed in accordance 
with criteria specified on standardized performance evaluation forms. 

(4) Written Test: 



2 Hours 



Total 



8 Hours 



Statutory Authority G.S. 17C-6. 

SECTION .0300 - MINIMUM STANDARDS 
FOR CRIMINAL JUSTICE INSTRUCTORS 

.0309 RADAR AND TD SPEED 

MEASUREMENT INSTRUMENT 
INSTRUCTORS 

In addition to all requirements contained in 12 
NCAC 9B .0308 of this Section, applicants in this 
category shall complete a 30 hour instructor 
training course in time-distance speed measurement 
as required in 12 NCAC 9B .021 1 . An applicant 
meeting the requirements for radar and T/D speed 
measurement instrument instructor certification 
shall be issued a certification to run concurrently 
with the existing radar instructor certification. 

Statutory Authority G.S. 17C-6. 



12-month period, successful completion of the 
appropriate instructor training program as required 
in 12 NCAC 9B .0308 will be required to obtain 
instructor certification. This prescribed 12-month 
period does not extend the instructor certification 
period. 

Statutory Authority G.S. 17C-6. 



.0310 TERMS AND CONDITIONS -- SMI 
INSTRUCTORS 

(a) The term of a radar instructor or a radar and 
time-distance speed measurement instrument 
instructor is two years from the date the Commis- 
sion issues the certificate, unless sooner terminated 
by the Commission. The certificate may be 
renewed for subsequent three year periods. The 
SMI instructor desiring renewal shall: 

(1) Hold general instructor certification as 
required in 12 NCAC 9B .0303. 

(2) Have been active in the SMI classroom 
instructional process during the previ- 
ous certification period. 

(3) Successfully complete a 
commission-approved SMI instructor 
re-certification course as required in 12 
NCAC 9B .0218 or .0219. 

(b) All SMI instructors seeking re-certification 
shall successfully complete the re-certification 
course within 12 months from expiration of the 
initial certification period or re-certification 
period^ but not sooner than oix month;; prior to 
the expiration of th e previous certification. If 
re-certification training is not obtained within the 



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269 



PROPOSED RULES 



SECTION .0400 - MINIMUM STANDARDS FOR COMPLETION OF TRAINING 

.0403 EVALUATION FOR TRAINING WAIVER 

(a) The division staff shall evaluate each law enforcement officer's training and experience to determine if 
equivalent training has been satisfactorily completed as specified in Rule .0402(a). Applicants for certification 
with prior law enforcement experience shall have been employed in a full-time, sworn law enforcement 
position in order to be considered for training evaluation under this Rule. Applicants for certification with 
a combination of full-time and part-time experience shall be evaluated on the basis of the full-time experience 
only. The following criteria shall be used by division staff in evaluating a law enforcement officer's training 
and experience to determine eligibility for a waiver of training requirements: 

( 1 ) Persons having completed a commission-accredited basic training program and not having been 
duly appointed and as-a sworn as a law enforcement officer within one year of completion of the 
program shall complete a subsequent commission-accredited basic training program in its entirety 
and successfully pass the State Comprehensive Examination prior to obtaining probationary law 
enforcement certificationr a unless the Director determines that a delay in applying for certification 
was not due to neglect on the part of the applicant, jn which case the Director may accept a 
commission-accredited basic training program which is over one year old. Such extension of the 
one year period shall not exceed 30 days from the expiration date of a commission-accredited basic 
training program. 

(2) Out-of-state transferees shall be evaluated to determine the amount and quality of their training and 
experience. Out-of-state transferees cannot have a break in service exceeding one year. At a 
minimum, out-of-state transferees shall have two years' full-time, sworn law enforcement 
experience and have successfully completed a basic law enforcement training course accredited by 
the State from which transferring. Prior to employment as a certified law enforcement officer, 
out-of-state transferees must successfully complete the employing agency's in-service firearms 
training and qualification program as prescribed in 12 NCAC 9E .0100. At a minimum, 
out-of-state transferees shall successfully complete a commission-accredited training program which 
includes the following enumerated topics of North Carolina law and procedure and shall 
successfully pass the State Comprehensive Examination in its entirety within the 12 month 
probationary period. 

Laws of Arrest, Search and Seizure 16 Hours 

Elements of Criminal Law 24 Hours 

Juvenile Laws and Procedures 8 Hours 

Controlled Substances 6 Hours 

ABC Laws and Procedures 4 Hours 

Motor Vehicle Laws 20 Hours 



Total 78 Hours 

(3) Persons who have completed a minimum 369-hour basic law enforcement training program 
accredited by the North Carolina Criminal Justice Education and Training Standards Commission 
under guidelines administered beginning October 1, 1984 and have been separated from a sworn 
position for over one year but less than three years who have had a minimum of two years' 
experience as a full-time, sworn law enforcement officer in North Carolina shall successfully 
complete the refresher training enumerated in Rule .0403(a}(4-) {2} and shall successfully pass the 
State Comprehensive Examination in its entirety within the 12 month probationary period. Prior 
to employment as a certified law enforcement officer, these persons shall successfully complete the 
employing agency's in-service firearms training and qualification program as prescribed in 12 
NCAC 9E .0100. 

(4) Persons out of the law enforcement profession for over one year but less than three years who have 
had less than two years' experience as a full-time, sworn law enforcement officer in North Carolina 
shall complete a commission-accredited basic training program in its entirety and successfully pass 
the State Comprehensive Examination. 



270 8:3 NORTH CAROLINA REGISTER May 3, 1993 



PROPOSED RULES 



> 



(5) Persons out of the law enforcement profession for over three years regardless of prior training or 
experience shall complete a commission-accredited basic training program in its entirety and shall 
successfully pass the State Comprehensive Examination. 

(6) Persons who separated from law enforcement employment during their probationary period after 
having completed a commission-accredited basic training program and who have separated from 
a sworn law enforcement position for more than one year shall complete a subsequent 
commission-accredited basic training program in its entirety and successfully pass the State 
Comprehensive Examination. 

(7) Persons who separated from a sworn law enforcement position during their probationary period 
after having successfully completed a commission-accredited basic training program and who have 
separated from a sworn law enforcement position for less than one year shall serve a new 12 month 
probationary period, but need not complete an additional training program. 

(8) Persons who have completed a minimum 160-hour basic law enforcement training program 
accredited by the North Carolina Criminal Justice Training and Standards Council under guidelines 
administered beginning on July 1, 1973 and continuing through September 30, 1978 and who have 
separated from a sworn law enforcement position for over one year but less than two years shall 
be required to complete the following portions of a commission-accredited basic training program 
and successfully pass the State Comprehensive Examination within the 12 month probationary 
period. Prior to employment as a certified law enforcement officer, these persons shall successfully 
complete the employing agency's in-service firearms training and qualification program as 
prescribed in 12 NCAC 9E .0100. 

Laws of Arrest, Search and Seizure 16 Hours 

Elements of Criminal Law 24 Hours 

Juvenile Laws and Procedures 8 Hours 

Controlled Substances 6 Hours 

ABC Laws and Procedures 4 Hours 
Motor Vehicle Laws - 20 Hours 

Law Enforcement Driver Training 16 Hours 



Total 94 Hours 

(9) Persons who have completed a minimum 160-hour basic law enforcement training program 
accredited by the North Carolina Criminal Justice Training and Standards Council under guidelines 
administered beginning on July 1 , 1973 and continuing through September 30, 1978 and have been 
separated from a sworn law enforcement position for over two years shall be required to complete 
a current commission-accredited basic training program in its entirety regardless of training and 
experience and shall successfully pass the State Comprehensive Examination. 

(10) Persons who have completed a minimum 240-hour basic law enforcement training program 
accredited by the North Carolina Criminal Justice Education and Training Standards Commission 
under guidelines administered beginning October 1, 1978 and continuing through September 30, 
1984 and have been separated from a sworn position over one year but less than three years shall 
be required to complete the following portions of a commission-accredited basic training program 
and successfully pass the State Comprehensive Examination within the 12 month probationary 
period. Prior to employment as a certified law enforcement officer, these persons shall successfully 
complete the employing agency's in-service firearms training and qualification program as 
prescribed in 12 NCAC 9E .0100. 

Laws of Arrest, Search and Seizure 16 Hours 

Elements of Criminal Law 24 Hours 

Juvenile Laws and Procedures 8 Hours 

Controlled Substances 6 Hours 

ABC Laws and Procedures 4 Hours 

Motor Vehicle Laws 20 Hours 



8:3 NORTH CAROLINA REGISTER May 3, 1993 271 



PROPOSED RULES 



Total 78 Hours 

(11) Persons previously holding law enforcement certification in accordance with G.S. 17C- 10(a) who 
have been separated from a sworn law enforcement position for over one year and who have not 
previously completed a minimum basic training program accredited by either the North Carolina 
Criminal Justice Training and Standards Council or the North Carolina Criminal Justice Education 
and Training Standards Commission shall be required to complete a commission-accredited basic 
training program in its entirety and shall successfully pass the State Comprehensive Examination 
prior to employment. 

(12) Persons who have completed training as a federal law enforcement officer and are appointed as a 
sworn law enforcement officer in North Carolina shall be required to complete a 
commission-accredited basic training program in its entirety and shall successfully pass the State 
Comprehensive Examination. 

(13) Applicants with part-time experience who have a break in service in excess of one year shall 
complete a commission-accredited basic training program in its entirety and successfully pass the 
State Comprehensive Examination prior to employment. 

(14) Applicants who hold or previously held certification issued by the North Carolina Sheriffs' 
Education and Training Standards Commission shall be subject to evaluation of their prior training 
and experience on an individual basis. The division staff shall determine the amount of training 
required of these applicants. 

(15) Alcohol law enforcement agents who separate from employment with the Division of Alcohol Law 
Enforcement and transfer to another law enforcement agency in a sworn capacity shall be subject 
to evaluation of their prior training and experience on an individual basis. The division staff shall 
determine the amount of training required of these applicants. 

(16) Wildlife enforcement officers who separate from employment with the Wildlife Enforcement 
Division and transfer to another law enforcement agency in a sworn capacity shall be subject to 
evaluation of their prior training and experience on an individual basis. The division staff shall 
determine the amount of training required of these applicants. 

(b) In those instances not specifically incorporated within this Section or where an evaluation of the 
applicant's prior training and experience determines that required attendance in the entire "Basic Recruit 
Training— Law Enforcement" course would be impractical, the Director of the Standards Division is authorized 
to exercise his discretion in determining the amount of training those persons shall complete during their 
probationary period. 

(c) The following criteria shall be used by division staff in evaluating prior training and experience of local 
confinement personnel to determine eligibility for a waiver of training requirements: 

( 1 ) Persons who hold probationary, general or grandfather certification as local confinement personnel 
and separate after having completed a commission-accredited course as prescribed in 12 NCAC 9B 
.0224 or .0225 and have been separated for more than one year shall complete a subsequent 
commission-accredited training course in its entirety and successfully pass the State Comprehensive 
Examination during the probationary period as prescribed in 9B .0401(a). 

(2) Persons who separated from a local confinement personnel position after having completed a 
commission-accredited course as prescribed in 12 NCAC 9B .0224 or .0225 and who have been 
separated for less than one year shall serve a new 12 month probationary period, but need not 
complete an additional training program. 

(3) Applicants who hold or previously held "Jailer Certification" issued by the North Carolina Sheriffs 
Education and Training Standards Commission shall be subject to evaluation of their prior training 
and experience on an individual basis. Where the applicant properly obtained certification and 
successfully completed the required 120 hour training course, and has not had a break in service 
in excess of one year, no additional training will be required. 

(4) Persons holding certification for local confinement facilities who transfer to a district or county 
confinement facility shall satisfactorily complete the course for district and county confinement 
facility personnel, as adopted by reference in 12 NCAC 9B .0224. in its entirety and successfully 
pass the State Comprehensive Examination during the probationary period as prescribed in 9B 
.0401(a). 



272 8:3 NORTH CAROLINA REGISTER May 3, 1993 



PROPOSED RULES 



Statutory- Authority G.S. 17C-2; 17C-6; 17C-W. 

.0404 TRAINEE ATTENDANCE 

(a) Each trainee enrolled in an accredited "Basic 
Recruit Training— Law Enforcement" course shall 
attend all class sessions. The trainee's department 
head shall be responsible for the trainee's regular 
attendance at criminal justice training courses in 
which the trainee is enrolled. 

(b) The school director may recognize valid 
reasons for class absences and may excuse a 
trainee from attendance at specific class sessions. 
However, in no case may excused absences exceed 
10 percent of the total class hours for the course 
offering. 

(c) If the school director grants an excused 
absence from a class session, he shall schedule 
appropriate make-up work and ensure the 
satisfactory completion of such work during the 
current course presentation or in a subsequent 
course delivery as is permissible under Rule 9B 
.0405. 

(d) A trainee shall not be eligible for 
administration of the comprehensive written 
examination nor certification for successful course 
completion if the cumulative total of class 
absences, with accepted make-up work, exceeds 
ten percent of the total class hours of the 
accredited course offering and should be 
expediently terminated from further course 
participation by the school director at the time of 
such occurrence. 

(e) A school director may terminate a trainee 
from course participation or may deny certification 
of successful course completion where the trainee 
is habitually tardy to. or regularly departs early 
from, class meetings or field exercises. 

(f) Where a trainee is enrolled in a program as 
required in 12 NCAC 9B .0212, .0213, .0214, 
.0215, .0218, .0219, .0220, .0221. or .0222, 
attendanc e shall b e 100 p e rc e nt in ord e r to r e c e iv e 
succ e ssful cour se compl e tion, and the scheduled 
course hours exceed the minimum requirements of 
the Commission, the trainee, upon the authoriza- 
tion of the school director, may be deemed to have 
satisfactorily completed the required number of 
hours for attendance provided the trainee's atten- 
dance is not less than 100 percent of the minimum 
instructional hours as required by the Commission. 

(g) A trainee enrolled in a presentation of the 
"Criminal Justice Instructor Training Course" 
under Rule .0209 of this Subchapter shall not be 
absent from class attendance for more than 10 
percent of the total scheduled delivery period in 
order to receive successful course completion. 



(h) A trainee, enrolled in a presentation of the 
local confinement facility course under Rule .0225 
of this Subchapter, shall not be absent from class 
attendance for more than 10 percent of the total 
scheduled delivery period in order to receive 
successful course completion. The school director 
shall schedule appropriate make-up work and 
ensure the satisfactory completion of such work 
during the current course presentation for all 
absenteeism. 

(i) A trainee, enrolled in a presentation of the 
"Specialized Instructor Training - Firearms" course 
under Rule .0226 of this Subchapter, the "Special- 
ized Instructor Training - Driving" course under 
Rule .0227 of this Subchapter, or the "Specialized 
Instructor Training - Defensive Tactics" course 
under Rule .0232 of this Subchapter, shall not be 
absent from class attendance for more than 10 
percent of the total scheduled delivery period in 
order to receive successful course completion. 
Appropriate make-up work must be completed 
during the current course presentation for all 
absenteeism. 

(j) A trainee, enrolled in a presentation of the 
"Radar Instructor Training Course" under Rule 
.0210 of this Subchapter, or the "Time-Distance 
Speed Measurement Instrument Instructor Training 
Course" under Rule .021 1 of this Subchapter, shall 
not be absent from class attendance for more than 
10 percent of the total scheduled delivery period in 
order to receive successful course completion. 
Appropriate make-up work must be completed 
during the current course presentation for all 
absenteeism. 

Statutory Authority G.S. 17C-2; 17C-6; 17C-10. 

SUBCHAPTER 9C - ADMINISTRATION OF 

CRIMINAL JUSTICE EDUCATION 

AND TRAINING STANDARDS 

SECTION .0300 - CERTIFICATION OF 
CRIMINAL JUSTICE OFFICERS 

.0303 PROBATIONARY CERTIFICATION 

(a) Before a prospective criminal justice officer 
may be administered the oath of office, exercise 
the power of arrest, or commence active service as 
an officer, the employing agency shall have in its 
possession the person's Probationary Certification. 

(b) The Commission shall certify as a probation- 
ary officer a person meeting the minimum stan- 
dards for criminal justice employment when the 
person's employing agency submits a completed 



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273 



PROPOSED RULES 



Report of Appointment to the Standards Division. 

(1) The Standards Division shall issue the 
person's Probationary Certification to 
the employing agency. 

(2) If an oath is required, the official ad- 
ministering an oath of office to the 
person shall be presented the person's 
Probationary Certification prior to the 
swearing. The administering official 
shall sign and date the oath on the 
Probationary Certification. The em- 
ploying agency shall return a copy of 
the signed Probationary Certification to 
the Standards Division within 10 days 
of the administration of the officer's 
oath. 

(3) If no oath is required, the officer's 
department head shall endorse the 
Probationary Certification and enter the 
date on which the officer's service 
commenced, returning a copy of the 
certification to the Standards Division 
within 10 days of the commencement of 
the officer's service. 

(c) The officer's Probationary Certification shall 
remain valid for one year from the date the certifi- 
cation is issued by the Standards Division unless 
sooner terminated for cause. 

(d) Before a prospective law enforcement offi- 
cer, except alcohol law e nforcement ag e nts and 
wildlife enforcement officers, can be issued a 
Probationary Certification, the prospective officer 
must have successfully completed the required 
basic training course stipulated in 12 NCAC 9B 
.0205(b). 

fe-> Befor e a prosp e ctiv e alcohol law e nforc e 
m e nt ag e nt can be issued a Probationary C e rtifica 
tion. th e pro s p e ctive officer must hav e succ e ssfully 
compl e ted the first e lev e n w ee ks of th e Basic 

Training: Alcohol — Law — Enforc e m e nt — Ag e nt's 

cours e stipulat e d in 12 NCAC 9B .0217(b). 

ff4 (ej Before a prospective wildlife enforcement 
officer can be issued a Probationary Certification, 
the prospective officer must have successfully 
completed the required basic training course 
stipulated in 12 NCAC 9B .0228(b). 

fg-) (f) An applicant for certification who holds 
a valid Probationary Certification issued by the 
North Carolina Sheriffs' Education and Training 
Standards Commission shall be certified as a 
probationary law enforcement officer as specified 
under Paragraphs (b), (c) and (d) of this Rule. 

#h j_g_) Where the local governing authority 
lawfully declares the existence of a public emer- 
gency, the department head of the criminal justice 



agency of the jurisdiction may swear persons as 
law enforcement officers without first obtaining 
Probationary Certification for those officers. The 
employing agency shall obtain Probationary Certif- 
ication for such emergency officers not more than 
20 days after the administration of their oath of 
office. 

Statutory Authority G.S. 17C-6; 17C-10. 

.0308 INSTRUMENT OPERATORS 
CERTIFICATION PROGRAM 

(a) Certification shall be issued in one of the 
following categories: 

(1) radar operator certification or 
re-certification requiring successful 
completion of the training program as 
required in 12 NCAC 9B .0210, .0211, 
.0212, .0213. .0218, .0219. .0220, or 
.0221; 

(2) radar and time-distance speed 
measurement instrument operator 
certification or re-certification requiring 
successful completion of the training 
program as required in 12 NCAC 9B 
.0211. .0213. .0219. or .0221; 

(3) time-distance speed measurement 
instrument operator certification or 
re-certification requiring successful 
completion of the training program as 
required in 12 NCAC 9B .0211, .0213. 
.0214. .0219. .0221. or .0222. 

(b) Certification in either category will reflect 
operational proficiency in the designated type(s) of 
approved equipment for which the trainee has been 
examined and tested. Such certification shall be 
for a two year period from the date of issue and 
re-certifications shall be for a three year period 
from the date of issue, unless sooner terminated by 
the Commission. However, if retesting on the 
motor-skill area is necessary, re-certification shall 
be for a two year period from the date of issue, 
unless sooner terminated by the Commission. At 
a minimum, the applicant shall meet the following 
requirements for operator certification or 
re-certification within 90 days of course 
completion and upon the presentation of 
documentary evidence showing that the applicant: 

( 1 ) has successfully completed the training 
program as required in 12 NCAC 9B 
.0210, .0211. .0212, .0213, .0214. 
.0218. .0219. .0220. .0221. or .0222: 
and 

(2) has successfully completed a 
commission-accredited basic law 



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PROPOSED RULES 



enforcement training course as required 
in 12 NCAC 9B .0400 and is currently 
certified in a probationary status or 
holds general law enforcement 
certification; or 
(3) if the applicant is a sheriff, deputy 
sheriff, or other sworn appointee with 
arrest authority governed by the 
provisions of Chapter 17E of the 
General Statutes, has met and is in total 
compliance with the then current 
employment and training standards as 
established and made effective for such 
position by the North Carolina Sheriffs' 
Education and Training Standards 
Commission. 

(c) Certified operators shall be notified by the 
Commission not less than 90 days prior to 
expiration of certification. All applicants for 
re-certification shall successfully complete a 
commission-approved re-certification course within 
12 months from the expiration of the previous 
certification. If re-certification is not obtained 
within the 12 month period, successful completion 
of the appropriate operator training programs as 
required by 12 NCAC 9B .0409(a) will be 
required to obtain operator certification. This 
prescribed 12 month period shall not extend the 
operator certification period beyond its specified 
expiration date. When a re-certification course is 
successfully completed prior to the expiration of 
the previous certification, the new certification 
shall be issued by the Criminal Justice Standards 
Division effective upon the receipt of the 
Post-delivery Report of Training Course 
Presentation. 

(d) Re-certification shall be issued only to 
officers with current law enforcement certification. 

(e) All certifications issued pursuant to this Rule 
and the standards in effect between November 1 . 
1981 and July 1, 1982 shall continue with full 
force and effect; however, said certifications shall 
be subject to the provisions of 12 NCAC 9C 
.0308(c) and (d). 

Statutory Authority G.S. 17C-6. 



SECTION .0600 - EQUIPMENT AND PROCEDURES 

.0601 APPROVED SPEED-MEASURING INSTRUMENTS 

(a) The following speed-measuring instruments are approved for radio microwave (radar) use, provided they 
are not equipped with dual antennas: 

( 1 ) repealed 

(2) repealed 



8:3 NORTH CAROLINA REGISTER May 3, 1993 275 



PROPOSED RULES 



(3) 

(4i 

(5) 

(6) 

(7) 

(8) 

(9) 

(10) 

(11) 

(12) 

(13) 

(14) 

(15) 

(16) 

(17) 

(18) 

(19) 

(20) 

(21) 

(22) 

(23) 

(24) 

(25) 

(26) 

(27) 

(28) 

(29) 

(30) 

(31) 

(32) 

(33) 

(34) 

(35) 

(36) 



repealed 

repealed 

repealed 

repealed 

repealed 

repealed 

repealed 

repealed 

repealed 

Kustom HR-8 

Kustom HR-12 

repealed 

repealed 

Kustom KR-1 1 

MPH K-15 

MPH K-55 

MPH S-80 

repealed 

repealed 

Decatur Ra-Gun (RAS & "N" Series) 

repealed 

Decatur Ra-Gun 1 and 2 (RAS) (Included in No. 22) 

Kustom KR-10 SP 

repealed 

repealed 

Kustom Falcon 

Kustom Roadrunner 

Kustom Trooper 

Decatur MVR 715 

Decatur MVR 724 

Decatur Hunter 

Kustom PRO- 1000 

MPH K15 II (86) 

Applied Concepts Stalker 



Stationary 
Moving/Stationary 



Moving/Stationary 

Stationary 

Moving/Stationary 

Moving/Stationary 



Stationary 



Moving/ Stationary 



Stationary 
Stationary 
Moving/Stationary 
Moving/ Stationary 
Moving/ Stationary 
Moving/Stationary 
Moving/Stationary 
Stationary 
Moving/ Stationary 



(b) The following speed-measuring instruments are approved for time-distance use provided that the 
instrument is not capable of accepting double time or double distance into the computer: 



( 1 ) KR 1 1 : Stopwatch Mod e repealed 

(2) repealed 

(3) Va s car I repealed 



Kustom Signals. Inc. 



Fed e ral Sign and 

Signal Corporation 

Fed e ral Sign and 

Signal Corporation 

Traffic Safety 

Systems. Inc. 

(c) All approved models and types of radio microwave (radar) speed-measuring instruments are made 

subject to and restricted as follows: 



(4) 
(5) 



Va s car II repealed 
Vascar Plus 



(1) 
(2) 
(3) 
(4) 



The automatic operate functions have been disconnected. 
The automatic alarms, audio and visual have been disconnected. 
The automatic locking functions have been disconnected. 

The instrument does not provide an external control that would permit the adjustment or correction 
of the zero or calibration readings. 
(5) The "High Speed Lock" function has been disconnected. 
Note: The automatic functions that shall be disconnected are any and all automatic violation alarm or lock 
capabilities that occur prior to the speed measuring instrument being manually locked by the operator, 
(d) All speed measuring instruments, as herein defined, purchased on or after July 1. 1982 for speed 



276 



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May 3, 1993 



PROPOSED RULES 



enforcement shall meet or exceed performance specifications as provided in the "Model Performance 
Specifications for Police Traffic Radar Devices" as prepared by the Law Enforcement Standards Laboratory 
of the National Bureau of Standards and published by the National Highway Traffic Safety Administration, 
United States Department of Transportation (as in effect July 1, 1982). Copies of the document in this Rule 
are available from the agency address at the cost of reproduction. 

(e) Prior to inclusion as an approved speed measuring instrument, the manufacturer of said instrument shall 
certify in writing to the agency that said instrument meets or exceeds the standards of 12 NCAC 9C .0601(d) 
and provide a copy of a testing report or other document illustrating the method and results used in such 
certification. 



Statutory Authority G.S. 17C-6. 

.0603 TESTING: RADIO MICROWAVE 
(RADAR) 

(a) The minimum specific test for radio 
microwave (radar) shall include: 

(1) Transmission Frequency Test. X-Band^ 
and K-Band^ and Ka Band instruments^ 
when operated at the standard supply 
voltage, the transmission frequency 
shall be within plus-minus .2 percent of 
the assigned frequency as specified in 
Subchapter 90. 103, paragraph 22 of the 
F.C.C. rules and regulations. 

(2) The technician testing each radar 
instrument shall test each instrument 
against the operator calibration and 
testing for accuracy procedures required 
by G.S. 17C-6(a)(13) and G.S. 
8-50. 2(b)(4) for each approved 
instrument. 

(b) During the radio microwave (radar) accuracy 
test the technician shall test each instrument to 
determine that the: 

(1) Automatic operate function is 
disconnected. 

(2) Automatic alarms, audio and visual is 
disconnected. 

(3) Automatic locking capability is 
disconnected. 

(4) Instrument does not provide an external 
control that would permit the 
adjustment or correction of the zero or 
calibration readings. 

(5) The "High Speed Lock" function is 
disconnected. 

(6) If the above five functions have not 
been disconnected the radio microwave 
(radar) instrument shall not pass the 
test. 

Note: The automatic functions that shall be 
disconnected are any and all automatic violation 
alarm or lock capabilities that occur prior to the 
speed measuring instrument being manually locked 
by the operator. 



(c) Tuning Fork Accuracy Test: 

(1) Every tuning fork K-Band and X-Band 
used to determine radio microwave 
(radar) accuracy shall be tested by a 
technician possessing at least a valid 
second class or general radiotelephone 
license from the Federal 
Communications Commission or a 
certification issued by organizations or 
committees endorsed by the Federal 
Communications Commission. This 
test shall be conducted in accordance 
with the requirements prescribed in 
G.S. 8-50.2. 

(2) When tested in accordance with (c)(1) 
of this Rule the frequency of vibration 
shall read within plus-minus .75 mph of 
that speed stamped on the tuning fork. 

(3) All tuning forks that are not stamped 
with a serial number for identification 
purposes shall be so impressed on the 
handle or heel, not on the tine portion, 
by the testing technician. The serial 
number is to be the same as the serial 
number on the radar amplifier, radar 
control cabinet, radar antenna or such 
other identifying number as assigned by 
the owning agency. 

Statutory Authority G.S. 17C-6. 

.0604 TESTING: TIME-DISTANCE 

(a) The minimum specific test for time-distance 
speed-measuring instruments shall include: 

(1) The time-distance device shall not be 
capable of accepting double time or 
double distance into the computer. 
(3) KR 11 — by — Ku s tom — Signal s , — feer 
(Stopwatch Mode). — Ent e r 140 yardo 
with the s peed di s tanc e s el e ct s witch e s. 
Set — the — CLK. Rang e control — te — the 
e xtr e me — counter clockwise — position. 
With pow e r (PWR) on, pres s th e test 
button. — Th e KR 1 1 will automatically 



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277 



PROPOSED RULES 



conduct — aa4 — display — m — the — readout 

windows — the — 1+g+rt — test — sequence. 

int e rnal circuitry t e st, (cross checked). 

and the s topwatch mod e accuracy test. 

Th e s topwatch mod e accuracy t e st shall 

display e xactly 55 in th e targ e t window 

and 16.2 in th e patrol window. 

•(-3-) Vascar I and II by F e d e ral Sign and 

Signal Corporation 

fA4 with th e pow e r on and th e comput e r 

e ras e d and r e ady to acc e pt distance 

and tim e information, e nt e r an e xact 

quart e r or one half mil e of distance 

from a pr e measur e d location on th e 

highway — by — turning — the — distanc e 

s witch — efi — at the b e ginning of the 

pr e m e asur e d cour se and off at th e 

end — ef- — the — pr e m e asur e d — course. 

Ent e r — 15.0 se cond s for on e quart e r 

mil e of distanc e or 30.0 s e conds for 

on e half mil e of di s tanc e by turning 

on and then off th e tim e s witch. — A 

mil e p e r hour reading of 60.0 mph 

plus minus 00. 1 is acc e ptabl e . 

fB} th e linearity of th e Vascar I computer 

is to b e ch e ck e d wh e n using either the 

one quart e r or one half mil e di s tance. 

On e quart e r mil e distanc e and 20 

s e conds — ef- — time — e quals — 45 — mph 

plus minus 00.1 mph. 10 s econd s of 

tim e e qual s 90 mph plus minus 00.1 

mph. — On e half mil e of distanc e and 

20 se cond s of tim e e quals 90 mph 

plu s minu s 00.1 mph. 60 s e conds of 

tim e e quals 30 mph plus minus 00.1 

f£4 a — plus minus — 90^4 — variation — is 
acc e ptabl e when t es ting Va s car I and 
11 comput e rs for accuracy. 
(4) £2}Vascar Plus by Traffic Safety 
Systems, Inc. Turn the power switch 
off, set all thumbwheels to zero, turn 
power on, display shall read all eights 
(8). If any other numbers are displayed 
there is a malfunction which shall be 
corrected before proceeding further 
with the testing procedures. Then, with 
power on. dial into thumbwheels the 
distance to be used to calibrate, either 
a quarter mile 02500 or one half mile 
05000. Enter an exact quarter or one 
half mile of distance from a 
pre-measured location on the highway 
by turning the distance switch on at the 
beginning of the pre-measured course 



and off at the end of the pre-measured 
course. Dial into the thumbwheels the 
calibration number now displayed in the 
readout. Turn power switch off then 
on and again travel through the 
pre-measured course turning the 
distance switch on at the beginning of 
the course and off at the end of the 
course. Enter 15.0 seconds of time for 
one quarter mile distance or 30.0 
seconds for one half mile distance. 
Press distance recall button. Display 
shall read distance you originally dialed 
into thumbwheels within plus-minus 1 
percent. One quarter mile readout shall 
be between 02475 and 02525. One half 
mile readout shall be between 04950 
and 05050. If distance readout is 
correct release the distance recall 
button. A mph reading of 60.0 mph 
plus-minus 1 percent is acceptable (.6 
mph plus-minus or 59.4 to 60.6). 
(b) Stopwatch Accuracy Test: 

(1) Every stopwatch used to enter a known 
amount of time into the time-distance 
speed-measuring instrument computer 
to determine accuracy shall be tested by 
a technician possessing at least a valid 
second class or general radiotelephone 
license from the Federal Communica- 
tions Commission or a certification 
issued by organizations or committees 
endorsed by the Federal Communica- 
tions Commission. This test shall be 
conducted in accordance with the re- 
quirements prescribed in G.S. 8-50.2. 

(2) The stopwatch shall be hand held, with 
a total time accumulation of at least five 
minutes. The stopwatch shall be accu- 
rate within plus-minus one second in 
five minutes. 

Statutory Authority G.S. 17C-6. 

TITLE 13 - DEPARTMENT OF LABOR 

CHAPTER 7 - OFFICE OF 
OCCUPATIONAL SAFETY AND HEALTH 

MAY 6 AND MAY 10 HEARLNGS 

CLARIFICATION TO THE NOTICE 
PUBLISHED IN 8:2 NCR 97-210: 



The place of the 2:00 PM May 6 public hearing 



278 



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PROPOSED RULES 



(announced on page 97 of the issue of April 15, 
1993) has been changed from the Labor Building 
to the Highway Building auditorium, 1 South 
Wilmington Street. Raleigh, North Carolina. 

Persons wishing to testify on the adoption of 
proposed 13 NCAC 7 A .0401 (Carolina Star 
Program) or proposed 13 NCAC 7A .0601 - .0607 
(Safety and Health Programs and Committees) may 
do so either at the above hearing on May 6, 1993, 
or at the continuation of that hearing to May 10, 
1993, at 10:30 AM in Room 150 of the Highway 
Building, 1 South Wilmington Street, Raleigh, 
North Carolina. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Coastal Management 
intends to amend rules cited as 15 A NCAC 7H 
.0203, .0205 - .0207, .1703 and adopt rules cited 
as 15A NCAC 7H .2001 - .2005. 

1 he proposed effective date of this action is 
September 1, 1993. 

1 he public hearing will be conducted at 4:00 
p.m. on May 27, 1993 at the Comfort Inn, 8031 
Old Oregon Inlet Road, Nags Head, NC 

Reason for Proposed Action: 
15A NCAC 7H .0203, .0205 - .0207- The pro- 
posed amendments are being made to create a 
consistent use of terminology within the stated 
management objectives for various areas of envi- 
ronmental concern. 

15A NCAC 7H .1703 - Vie CRC has decided that 
no fee will be charged for permitting work neces- 
sary to respond to emergency situations. 
15A NCAC 7H .2001 - .2005 - Tlie adoption of 
these New General Permit rules would be to 
authorize reconfiguration, minor modifications, 
repair and improvements to existing pier and 
mooring facilities regardless of their commer- 
cial/non-commercial status or the cost of the 
proposal. Tfie General Permit will authorize those 
types of facility modifications provided that there 
is no increase in the number of boatslips. Tins 
processing fee ($50.00) is in accordance with other 
CR C permit ru les . 



Comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Tlie Coastal Resources Commission will 
receive mailed written comments postmarked no 
later than June 2, 1993. Any person desiring to 
present lengthy comments is requested to submit a 
written statement for inclusion in the record of 
proceedings at the public hearing. Additional 
information concerning the hearing or the propos- 
als may be obtained by contacting Dedra 
Blackwell, Division of Coastal Management , PO 
Box 27687, Raleigh, NC 27611-7687, (919) 733- 
2293. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES 

FOR AREAS OF ENVIRONMENTAL 

CONCERN 

SECTION .0200 - THE ESTUARINE 
SYSTEM 

.0203 MANAGEMENT OBJECTIVE 
OF THE ESTUARINE SYSTEM 

It is the objective of the Coastal Resources 
Commission to giv e high priority to th e prot e ction 
and — coordinat e d — manag e ment of conserve and 
manage estuarine waters, coastal wetlands, public 
trust areas, and estuarine shorelines, as an 
interrelated group of AECs, so as to safeguard and 
perpetuate their biological, social, economic, and 
aesthetic values and to ensure that development 
occurring within these AECs is compatible with 
natural characteristics so as to minimize the 
likelihood of significant loss of private property 
and public resources. Furthermore, it is the 
objective of the Coastal Resources Commission to 
protect present common-law and statutory public 
rights of access to the lands and waters of the 
coastal area. 

Statutory Authority G.S. 102(b)(1): 102(b)(4); 
113A-107(a); 113A-107(b); 113A-124. 

.0205 COASTAL WETLANDS 

(a) Description. Coastal wetlands are defined as 
any salt marsh or other marsh subject to regular or 
occasional flooding by tides, including wind tides 
(whether or not the tide waters reach the 
marshland areas through natural or artificial 
watercourses), provided this shall not include 
hurricane or tropical storm tides. Coastal wetlands 
contain some, but not necessarily all, of the 



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279 



PROPOSED RULES 



following marsh plant species: 

(1) Cord Grass (Spartina alterniflora), 

(2) Black Needlerush (Juncus roemerianus), 

(3) Glasswort (Salicornia spp.), 

(4) Salt Grass (Distichlis spicata), 

(5) Sea Lavender (Limonium spp.), 

(6) Bulrush (Scirpus spp.), 

(7) Saw Grass (Cladium jamaicense), 

(8) Cat-tail (Typha spp.), 

(9) Salt Meadow Grass (Spartina patens), 

(10) Salt Reed Grass (Spartina 
cynosuroides). 

Included in this definition of coastal wetlands is 
"such contiguous land as the Secretary of EHNR 
reasonably deems necessary to affect by any such 
order in carrying out the purposes of this Section." 
[G.S. 113-230(a)]. 

(b) Significance. The unique productivity of the 
estuarine system is supported by detritus (decayed 
plant material) and nutrients that are exported from 
the coastal marshlands. The amount of exportation 
and degree of importance appears to be variable 
from marsh to marsh, depending primarily upon its 
frequency of inundation and inherent 
characteristics of the various plant species. 
Without the marsh, the high productivity levels 
and complex food chains typically found in the 
estuaries could not be maintained. 

Man harvests various aspects of this productivity 
when he fishes, hunts, and gathers shellfish from 
the estuary. Estuarine dependent species of fish 
and shellfish such as menhaden, shrimp, flounder, 
oysters, and crabs currently make up over 90 
percent of the total value of North Carolina's 
commercial catch. The marshlands, therefore, 
support an enormous amount of commercial and 
recreational businesses along the seacoast. 

The roots, rhizomes, stems, and seeds of coastal 
wetlands act as good quality waterfowl and wildlife 
feeding and nesting materials. In addition, coastal 
wetlands serve as the first line of defense in 
retarding estuarine shoreline erosion. The plant 
stems and leaves tend to dissipate wave action, 
while the vast network of roots and rhizomes 
resists soil erosion. In this way, the coastal 
wetlands serve as barriers against flood damage 
and control erosion between the estuary and the 
uplands. 

Marshlands also act as nutrient and sediment 
traps by slowing the water which flows over them 
and causing suspended organic and inorganic 
particles to settle out. In this manner, the nutrient 
storehouse is maintained, and sediment harmful to 
marine organisms is removed. Also, pollutants and 
excessive nutrients are absorbed by the marsh 



plants, thus providing an inexpensive water 
treatment service. 

(c) Management Objective. To give highest 
priority to th e prot e ction and — management of 
conserve and manage coastal wetlands so as to 
safeguard and perpetuate their biological, social, 
economic and aesthetic values; to coordinate and 
establish a management system capable of 
conserving and utilizing coastal wetlands as a 
natural resource essential to the functioning of the 
entire estuarine system. 

(d) Use Standards. Suitable land uses shall be 
those consistent with the management objective in 
this Rule. Highest priority of use shall be 
allocated to the conservation of existing coastal 
wetlands. Second priority of coastal wetland use 
shall be given to those types of development 
activities that require water access and cannot 
function elsewhere. 

Unacceptable land uses may include, but would 
not be limited to, the following examples: 
restaurants and businesses; residences, apartments, 
motels, hotels, and trailer parks; parking lots and 
private roads and highways; and factories. 
Examples of acceptable land uses may include 
utility easements, fishing piers, docks, and 
agricultural uses, such as farming and forestry 
drainage, as permitted under North Carolina's 
Dredge and Fill Act and/or or other applicable 
laws. 

In every instance, the particular location, use, 
and design characteristics shall be in accord with 
the general use standards for coastal wetlands, 
estuarine waters, and public trust areas described 
in Rule .0208 of this Section. 

Statutory Authority G.S. 113A- 107(a); 113 A- 
107(b); 113A-1 13(b)(1); 113A-124. 

.0206 ESTUARINE WATERS 

(a) Description. Estuarine waters are defined in 
G.S. 113A-1 13(b)(2). The boundaries between in- 
land and coastal fishing waters are set forth in an 
agreement adopted by the Wildlife Resources 
Commission and the Department of Environment, 
Health, and Natural Resources and in the most 
current revision of the North Carolina Marine 
Fisheries Regulations for Coastal Waters, codified 
at 15A NCAC 3Q .0200. 

(b) Significance. Estuarine waters are the 
dominant component and bonding element of the 
entire estuarine system, integrating aquatic 
influences from both the land and the sea. 
Estuaries are among the most productive natural 
environments of North Carolina. They support the 



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PROPOSED RULES 



valuable commercial and sports fisheries of the 
coastal area which are comprised of estuarine 
dependent species such as menhaden, flounder, 
shrimp, crabs, and oysters. These species must 
spend all or some part of their life cycle within the 
estuarine waters to mature and reproduce. Of the 
ten leading species in the commercial catch, all but 
one are dependent on the estuary. This high 
productivity associated with the estuary results 
from its unique circulation patterns caused by tidal 
energy, fresh water flow, and shallow depth; 
nutrient trapping mechanisms; and protection to 
the many organisms. The circulation of estuarine 
waters transports nutrients, propels plankton, 
spreads seed stages of fish and shellfish, flushes 
wastes from animal and plant life, cleanses the 
system of pollutants, controls salinity, shifts 
sediments, and mixes the water to create a 
multitude of habitats. Some important features of 
the estuary include mud and sand flats, eel grass 
beds, salt marshes, submerged vegetation flats, 
clam and oyster beds, and important nursery areas. 
Secondary benefits include the stimulation of the 
coastal economy from the spin off operations re- 
quired to service commercial and sports fisheries, 
waterfowl hunting, marinas, boatyards, repairs and 
supplies, processing operations, and tourist related 
industries. In addition, there is considerable non- 
monetary value associated with aesthetics, 
recreation, and education. 

(c) Management Objective. To give th e high e st 
priority to th e conservation and manag e ment of 
conserve and manage the important features of 
estuarine waters so as to safeguard and perpetuate 
their biological, social, aesthetic, and economic 
values; to coordinate and establish a management 
system capable of conserving and utilizing 
estuarine waters so as to maximize their benefits to 
man and the estuarine system. 

(d) Use Standards. Suitable land/water uses shall 
be those consistent with the management objectives 
in this Rule. Highest priority of use shall be 
allocated to the conservation of estuarine waters 
and its vital components. Second priority of 
estuarine waters use shall be given to those types 
of development activities that require water access 
and use which cannot function elsewhere such as 
simple access channels; structures to prevent 
erosion; navigation channels; boat docks, marinas, 
piers, wharfs, and mooring pilings. 

In every instance, the particular location, use, 
and design characteristics shall be in accord with 
the general use standards for coastal wetlands, 
estuarine waters, and public trust areas described 
in Rule .0208 of this Section. 



Statutory Authority G.S. 113A-1 07(a); 113A- 
107(b); 11 3 A- 11 3(b)(2); 113A-124. 

.0207 PUBLIC TRUST AREAS 

(a) Description. Public trust areas are all waters 
of the Atlantic Ocean and the lands thereunder 
from the mean high water mark to the seaward 
limit of state jurisdiction; all natural bodies of 
water subject to measurable lunar tides and lands 
thereunder to the mean high water mark; all 
navigable natural bodies of water and lands 
thereunder to the mean high water level or mean 
water level as the case may be, except privately- 
owned lakes to which the public has no right of 
access; all water in artificially created bodies of 
water containing significant public fishing 
resources or other public resources which are 
accessible to the public by navigation from bodies 
of water in which the public has rights of 
navigation; and all waters in artificially created 
bodies of water in which the public has acquired 
rights by prescription, custom, usage, dedication, 
or any other means. In determining whether the 
public has acquired rights in artificially created 
bodies of water, the following factors shall be 
considered: 

( 1 ) the use of the body of water by the 
public, 

(2) the length of time the public has used 
the area, 

(3) the value of public resources in the 
body of water, 

(4) whether the public resources in the 
body of water are mobile to the extent 
that they can move into natural bodies 
of water, 

(5) whether the creation of the artificial 
body of water required permission from 
the state, and 

(6) the value of the body of water to the 
public for navigation from one public 
area to another public area. 

(b) Significance. The public has rights in these 
areas, including navigation and recreation. In addi- 
tion, these areas support valuable commercial and 
sports fisheries, have aesthetic value, and are im- 
portant resources for economic development. 

(c) Management Objective. To protect public 
rights for navigation and recreation and to pr e s e rv e 
conserve and manage the public trust areas so as to 
safeguard and perpetuate their biological, 
economic and aesthetic value. 

(d) Use Standards. Acceptable uses shall be those 
consistent with the management objectives in 



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281 



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Paragraph (c) of this Rule. In the absence of 
overriding public benefit, any use which 
significantly interferes with the public right of 
navigation or other public trust rights which the 
public may be found to have in these areas shall 
not be allowed. The development of navigational 
channels or drainage ditches, the use of bulkheads 
to prevent erosion, and the building of piers, 
wharfs, or marinas are examples of uses that may 
be acceptable within public trust areas, provided 
that such uses will not be detrimental to the public 
trust rights and the biological and physical 
functions of the estuary. Projects which would di- 
rectly or indirectly block or impair existing 
navigation channels, increase shoreline erosion, 
deposit spoils below mean high tide, cause adverse 
water circulation patterns, violate water quality 
standards, or cause degradation of shellfish waters 
are generally considered incompatible with the 
management policies of public trust areas. In every 
instance, the particular location, use, and design 
characteristics shall be in accord with the general 
use standards for coastal wetlands, estuarine 
waters, and public trust areas. 

Statutory Authority G.S. 113A-107(a); 113A- 
107(b); 1 13A-1 13(b)(5); 113A-124. 

SECTION .1700 - GENERAL PERMIT FOR 

EMERGENCY WORK REQUIRTNG A 

CAMA AND/OR A DREDGE AND 

FILL PERMIT 

.1703 PERMIT FEE 

The applicant must pay a p e rmit f e e of fifty 
dollar s ($50.00) by ch e ck or mon e y ord e r payabl e 
to the D e partm e nt. The agency shall not charge a 
fee for permitting work necessary to respond to 
emergency situations. 

Statutory- Authority G.S. 113-229(c)(l); 113A- 
107(a), (b); 113A-1 13(b); 113A-118.1; 113A-119. 

SECTION .2000 -GENERAL PERMIT FOR 

ALTHORIZLNG MLNOR MODIFICATIONS 

AND REPAIR TO EXISTLNG 

PIER/MOORTNG FACILITIES LN 

ESTUARLNE AND PUBLIC TRUST 

WATERS 

.2001 PURPOSE 

This permit will allow for reconfiguration, minor 
modifications, repair and improvements to existing 
pier and mooring facilities in estuarine waters and 
public trust areas according to the authority 



provided in Subchapter 7J . 1 100 of this Chapter 
and according to the following guidelines. This 
permit will not apply to the Ocean Hazard AEC. 

Statutory Authority G.S. 113A-107; 113A-118.1. 

.2002 APPROVAL PROCEDURES 

(a) The applicant must contact the Division of 
Coastal Management and complete an application 
form requesting approval for development. The 
applicant shall provide information on site 
location, dimensions of the project area, and 
his/her name and address. 

fb) The applicant must provide: 

( 1 ) confirmation that a written statement 
has been obtained and signed by the 
adjacent riparian property owners 
indicating that they have no objections 
to the proposed work; or 

(2) confirmation that the adjacent property 
owners have been notified by certified 
mail of the proposed work. Such 
notice should instruct adjacent property 
owners to provide any comments on the 
proposed development in writing for 
consideration by permitting officials to 
the Division of Coastal Management 
within ten days of receipt of the notice, 
and, indicate that no response will be 
interpreted as no objection. PCM staff 
will review all comments and 
determine, based on their relevance to 
the potential impacts of the proposed 
project, jf the proposed project can be 
approved by a General Permit. If 
PCM staff finds that the comments are 
worthy of more in-depth review, the 
applicant will be notified that he/she 
must submit an application for a major 
development permit; or 

(3) a dated plat(s) showing existing 
development and the proposed 
development. 

(c) Approval of individual projects will be 
acknowledged in writing by the Pivision of 
Coastal Management and the applicant shall be 
provided a copy of this Section. Construction 
authorized by this permit must be completed within 
90 days of permit issuance or the general 
authorization expires and a new permit may be 
required to begin or continue construction. 

Statutory Authority G.S. 113A-107; 113A-118.1. 

.2003 PERMIT FEE 



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The applicant must pay a permit fee of fifty 
dollars ($50.00) by check or money order payable 
to the Department, 

Statutory A uthority G.S. 113A-107; 113A-118.1. 

.2004 GENERAL CONDITIONS 

(a) Structures authorized by this permit shall 
conform to the standards herein. 

(b) Individuals shall allow authorized 
representatives of the Department of Environment, 
Health, and Natural Resources to make periodic 
inspections at any time deemed necessary in order 
to be sure that the activity being performed under 
the authority of this general permit is in 
accordance with the terms and conditions 
prescribed herein. 

(c) There shall be no unreasonable interference 
with navigation or use of the waters by the public 
by the existence of piers or mooring pilings. 

(d) This general permit may be either modified, 
suspended or revoked in whole or in part 
according to the provisions of G.S. 1 13A-107 if 
the Department determines that such action would 
be in the best public interest. This general permit 
will not be applicable to proposed construction 
where the Department believes that authorization 
may be warranted, but that the proposed activity 
might significantly affect the quality of the human 
environment, or unnecessarily endanger adjoining 
properties. 

(e) This general permit will not be applicable to 
proposed construction when the Department 
determines, after any necessary investigations, that 
the proposed activity would adversely affect areas 
which possess historic, cultural, scenic, 
conservation or recreational values. 

(f) The Department may, on a case-by-case 
basis, determine that the general permit shall not 
be applicable to a specific construction proposal. 
In those cases, individual permit applications and 
review of the proposed project will be required 
according to 15A NCAC TL 

(g) This permit does not eliminate the need to 
obtain any other required state, local, or federal 
authorization. 

(h) Development carried out under this permit 
must be consistent with all local requirements, 
AEC Guidelines, and local land use plans current 
at the time of authorization. 

Statutory A uthority G.S. 1 13 A- 107; 1 13 A- 11 8. 1 . 

.2005 SPECIFIC CONDITIONS 

(a) All proposed work must be carried out 



within the existing footprint of the development 
with no increase in the number of slips nor any 
change in the existing use. "Existing footprint" is 
defined as the area delineated by the outer most 
line of tie pilings, ends of piers, and upland basin 
or area within an enclosing breakwater, whichever 
is greater. 

(b) Modifications to piers and mooring facilities 
shall not interfere with the access to any riparian 
property, and shall have a minimum setback of 15 
feet between any part of the pier(s) or piling(s) and 
the adjacent property lines extended into the water 
at the points that they intersect the shoreline. The 
minimum setbacks provided in the rule may be 
waived by the written agreement of the adjacent 
riparian owner(s). or when two adjoining riparian 
owners are co-applicants. Should the adjacent 
property be sold before construction of the pier(s) 
or piling(s) commences, the applicant shall obtain 
a written agreement with the new owner waiving 
the minimum setback and submit it to the Division 
of Coastal Management prior to initiating any 
development. The line of division of areas of 
riparian access shall be established by drawing a 
line along the channel or deep water in front of the 
property, then drawing a line perpendicular to a 
line of the channel so that it intersects with the 
shore at the point the upland property line meets 
the water's edge. When shoreline configuration is 
such that a perpendicular alignment cannot be 
achieved, the pier shall be aligned to meet the 
intent of this rule to the maximum extent 
practicable. 

Statutory Authority G.S. 113A-107; 113A-118.1. 

l\ otice is hereby given in accordance with G.S. 
150B-21.2 that EHNR - Commission for Health 
Services intends to amend rule cited as 15 A NCAC 
18A .2537. 

1 he proposed effective date of this action is 
October 1, 1993. 

1 he public hearing will be conducted at 1:30 
p.m. on June 2, 1993 at the Highway Building, 
First Floor Auditorium, 1 South Wilmington Street, 
Raleigh, NC. 

Reason for Proposed Action: Tliis amendment is 



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283 



PROPOSED RULES 



to prevent enforcement of a rule which might cause 
a serious and unforeseen threat to public welfare. 
This amendment will eliminate the requirement to 
move bathhouses and locker rooms at some older 
public swimming pools. 

[comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice. P. O. Box 629. 
Raleigh, NC 27602-0629. (919) 733-4618. 
Persons who wish to speak at the hearing should 
contact John P. Barkley at (919) 733-4618. 
Persons who call in advance of the hearing will be 
given priority on the speaker's list. Oral 
presentation lengths may be limited depending on 
the number of people that wish to speak at the 
public hearing. Only persons who have made 
comments at a public hearing or who have 
submitted written comments will be allowed to 
speak at the Convnission meeting. Comments 
nude at the Commission meeting must either 
clarify' previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS. GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS, OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HE.ALTH 
SERVICES THROUGH THE PUBIIC HE.ARING AND 
COMMENT PROCESS. WHETHER THEY SUPPORT 
OR OPPOSE ANY OR .ALL PROVISIONS OF THE 
PROPOSED RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 
150B-21.2(f). 

tLditor's Note: Tltis Rule was filed as a 
temporary rule effective May 1, 1993 for a period 
of 180 days or until the permanent rule becomes 
effective, whichever is sooner. 

CHAPTER 18 
ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .2500 - PUBLIC SWIMMLNG 
POOLS 

.2537 MAINTENANCE AND OPERATION 



(a) All public swimming pools constructed or 
remodeled on or after May 1, 1991 shall be 
maintained and operated in accordance with the 
Rules of this Section. 

(b) On or after May 1, 1993 all public 
swimming pools including those constructed prior 
to May 1, 1991 shall be maintained and operated 
in accordance with the following: 

(1) All safety provisions of Rule .2530 of 
this Section shall be met. 

(2) Decks shall be structurally sound and 
provide uniform walking surface with 
no offset greater than one half inch (1.3 
cm). 

(3) There shall be no loose coping. 

(4) Artificial lighting shall be provided in 
accordance with Rule .2524 of this 
Section for all pools used when natural 
lighting is not sufficient to make all 
parts of the pool and pool area clearly 
visible. 

(5) Fences and gates shall be constructed 
and maintained in accordance with Rule 
.2528 of this SectionT except that public 
swimming pools built prior to May F, 
1993 are not required to relocate gates 
or doors to meet provisions of Rule 
.25281 ft i of this Section. 

(6) Floating safety ropes and bottom 
markings shall be provided as required 
in Rule .2523 of this Section where the 
slope of the pool bottom exceeds 1 to 
10 vertical rise to horizontal distance. 

(7) Depth markings shall be provided as 
described in Rule .2523 of this Section. 

(8) Drain covers shall be in good condition 
and securely attached. 

(9) Damaged face plates or fittings shall be 
repaired or replaced. 

(10) Underwater light niches shall be 
maintained or covered so as not to 
present a potential hazard to bathers. 

(11) Surface skimmers shall be maintained 
in working condition with baskets and 
weirs in place. Overflow gutters and 
grates shall be maintained in working 
condition. 

(12) Pool ladders with non-skid treads and 
stair railings shall be maintained and 
securely fastened in place. Contrasting 
color bands at least two inches wide 
shall be applied and maintained on the 
leading edge of stair treads. 

(13) Diving equipment and pool slides in- 
cluding stairs and railing shall be main- 



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PROPOSED RULES 



tained in good working order. 
Statutory Authority G.S. 130A-282. 

TITLE 21 - OCCUPATIONAL LICENSING BOARD 

J\otice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina Board for Licensing of 
Geologists intends to amend rule cited as 21 NCAC 21 .0107. 

1 he proposed effective date of this action is September 1 , 1993. 

1 he public hearing will be conducted at 8:00 a.m. on June 25, 1993 at the Offices of Law Environmental, 
Inc. , 4333 Wilmont Road, Charlotte, NC 28208. 

Keason for Proposed Action: Allow Board to set fees as necessary to meet operating costs. 

(comment Procedures: In writing to Chairnuin, North Carolina Board for Licensing of Geologists , P.O. Box 
27402, Raleigh, NC 27611, by June 4, 1993 or at the public hearing. 

CHAPTER 21 - BOARD OF GEOLOGISTS 

SECTION .0100 - STATUTORY AND ADMINISTRATIVE PROCEDURES 

.0107 FEES 

(a) Completed application forms must be accompanied by the prescribed fee. Application fees will not be 
refunded regardless of Board approval or disapproval of the application. Prescribed fees shall be set by the 
Board up to the following limits : 

(1) application forms for licensing as geologist $5.00 $10.00 

(2) application for license $50.00 $100.00 

(3) examination $100.00 $300.00 

(4) application for license by comity $50.00 $100.00 

(5) biennial renewal of license $70.00 $150.00 

(6) biennial renewal of license by N.C. resident geologists practicing 

less than 15 days per year $30.00 $50.00 

(7) replacement of license $10.00 $25.00 

(8) application for reinstatement of license $50.00 $100.00 

(9) licensed geologist stamp and seal, cost plus: $5.00 $10.00 

(10) application for corporate registration $50.00 

(11) annual renewal of corporate registration $25.00 

(12) registered geological corporation stamp and seal, cost plus: $ 5.00 $10.00 

(13) application for reinstatement of corporate registration $50.00 

(b) All licenses will expire biennially on July 1 June 30 . Biennial renewal fees received afte r July 1 June 
30 and before September 1 of the renewal year shall be subject to the assessment of a late penalty of 
twenty-five dollars ($25.00). 

(c) All certificates of registration for corporations will expire annually on July 1 June 30 . Annual renewal 
fees for certificates of registration for corporations received after Augu s t 1 June 30 and before December 31 
September i shall be subject to a late payment penalty of twenty-five dollars ($25.00). 

(e d) Licenses or corporate certificates of registration that have not been renewed by September 1st of the 
renewal year may only be renewed by filing a reinstatement application and submitting a the reinstatement 
fee. 

(d ej Licenses that have been suspended under G.S. 89E-19 may be reinstated by filing a reinstatement 



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PROPOSED RULES 



application and paying the reinstatement fee. 

Statutory Authority G.S. 55B-2(6); 55B-10; 55B-11; 

TITLE 25 - OFFICE OF STATE 
PERSONNEL 

Notice is hereby given in accordance with G.S. 
150B-2 1.2 that the Office of State Personnel/State 
Personnel Commission intends to adopt rules cited 
as 25 NCAC IE .1401 - .1409; and amend rule 
cited as 25 NCAC 1J .0802. 

1 he proposed effective date of this action is 
August 2, 1993. 

1 he public hearing will be conducted at 9:00 
a.m. on June 8, 1993 at the State Personnel 
Development Center. 101 W. Peace Street, Ra- 
leigh. N.C 

IXeason for Proposed Action: 

25 NCAC IE .1401 - .1409 - To offer guidance 

and clarification to state agencies and universities 

in implementing new federal legislation (Tlie 

Family and Medical Leave Act of 1993, P.L. 

103-3). 

25 NCAC 1J .0802 - To clarify and define the 

appointments of the Governor's Awards Committee 

for Recognition of State Employees. 

Ksommerti Procedures: Interested persons may 
present statements either orally or in writing at the 
Public Hearing or in writing prior to the hearing 
by mail addressed to: Barbara A. Coward. 116 W. 
Jones Street, Raleigh, N.C. 27603. 

CHAPTER 1 - OFFICE OF STATE 
PERSONNEL 

SUBCHAPTER IE - EMPLOYEE BENEFITS 



SECTION .1400 



FAMILY AND MEDICAL 
LEAVE 



89E-5; 89E-8; 89E-10; 89E-12; 89E-13; 89E-19. 

discrimination on the basis of sex by ensuring 
generally that leave is available for eligible medi- 
cal reasons (including maternity-related disability) 
and for compelling family reasons; and to promote 
the goal of equal employment opportunity for 
women and men. 

Statutory Authority G.S. 126-4(5); P.L. 103-3. 

.1402 ELIGIBLE EMPLOYEES 

(a) Permanent Employees = An employee who 
has been employed with State government for at 
least one year and who has worked at least 1080 
hours (half-time) during the past 12 months is 
entitled to a total of J_2 workweeks, paid or un- 
paid, leave during any 12-month period for one or 
more of the following reasons: 

( 1 ) For the birth of a child and to care for 
the child after birth, provided the leave 
is taken within a 12-month period fol- 
lowing birth; 

(2) For the employee to care for a child 
placed with the employee for adoption, 
provided the leave is taken within a 12- 
month period following adoption; 

(3) For the employee to care for the emplo- 
yee's child, spouse, or parent, where 
that child, spouse, or parent has a 
serious health condition; or 

(4) Because the employee has a serious 
health condition that makes the employ- 
ee unable to perform the functions of 
the employee's position. 

Leave without pay beyond the 12- week period will 
be administered under 25 NCAC J_E .1100 Other 
Leaves Without Pay. 

(b) Temporary Employees = This Rule does not 
cover temporary employees since the maximum 
length of a temporary appointment is one year; 
however, if, by exception, a temporary employee 
is extended beyond one year, the employee would 
be covered if they had worked at least 1250 hours 
during the past 12-month period. Any leave 



.1401 PURPOSE 

The Family and Medical Leave Act of 1993 was 
passed by Congress to balance the demands of the 
workplace with the needs of families, to promote 
the stability and economic security of families, and 
to promote national interests in preserving family 
integrity; to minimize the potential for employment 



granted to a temporary employee would be without 
pay, 

(c) Spouses Employed by the Same Agency = If 
a husband and wife are employed by the same 
agency, the aggregate number of workweeks of 
leave is limited to J_2 workweeks during any 12- 
month period where such leave is taken pursuant 
to the provisions in Subparagraphs (a)( 1 ) and (2) 
of this Rule and pursuant to Subparagraph (a)(3) of 



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this Rule if the leave requested is to care for a 
parent who has a serious health condition. 

Statutory Authority G.S. 126-4(5); P. L. 103-3. 

.1403 DEFINITIONS 

(a) Parent - a biological or adoptive parent or an 
individual who stood in loco parentis £a person 
who is in the position or place of a parent) to an 
employee when the employee was a child. 

(b) Child - is a son or daughter who is under 18 
years of age or is 18 years of age or older and 
incapable of self-care because of a mental or 
physical disability who is: 

(1) a biological child; 

(2) an adopted child; 

(3) a foster child = a child for whom the 
employee performs the duties of a 
parent as if it were the employee's 
child; 

(4) a step-child - a child of the employee's 
spouse from a former marriage; 

(5) a legal ward ; a minor child placed by 
the court under the care of a guardian; 

(6) a child of an employee standing in loco 
parentis. 

(c) Spouse -_ a husband or wife. 

(d) Serious health condition - an illness, injury, 
impairment, or physical or mental condition that 
involves either inpatient care in a hospital, hos- 
pice, or residential medical care facility, or that 
involves continuing treatment by a health care 
provider. 

Statutory Authority G.S. 126-4(5); P. L. 103-3. 

.1404 LEAVE CHARGES 

(a) For the birth of a child, the parents shall 
exhaust available vacation leave before going on 
leave without pay, except that sick leave may be 
used during the period of disability. 

(b) For the adoption of a child, the parents shall 
exhaust vacation leave before going on leave 
without pay. 

(c) For the illness of an employees child, 
spouse, or parent, the employee shall exhaust 
available sick and vacation leave before going on 
leave without pay. 

(d) For the employee's illness, the employee 
shall exhaust available sick and vacation leave 
before going on leave without pay. If the illness 
extends beyond the 60-day waiting period required 
for short-term disability, the employee may choose 
whether to use the balance of available leave or 
begin drawing short-term disability benefits. 



(e) Periods of paid leave shall account for any 
part of the ]_2 workweeks. This includes leave 
taken under the Voluntary Shared Leave Rules (25 
NCAC IE .1300). 

Statutory Authority G.S. 126-4(5); P. L. 103-3. 

.1405 INTERMITTENT LEAVE OR 
REDUCED WORK SCHEDULE 

(a) The employee may not take leave intermit- 
tently or on a reduced work schedule for child 
birth and care or for adoption unless the employee 
and agency agree otherwise. 

(b) With approval of the agency, the employee 
may take leave intermittently or on a reduced 
schedule to care for the employee's child, spouse, 
or parent who has a serious health condition, or 
because the employee has a serious health condi- 
tion. If such leave is foreseeable, based on 
planned medical treatment, the agency may require 
the employee to transfer temporarily to an avail- 
able alternative position for which the employee is 
qualified and that has e quivalent pay and benefits 
and better accommodates recurring periods of 
leave. 

Statutory Authority G.S. 126-4(5); P. L. 103-3. 

.1406 EMPLOYEE RESPONSIBILITY 

(a) The employee shall apply in writing to the 
supervisor for leave requested under this Rule as 
follows: 

(1) Birth or adoption - The employee shall 
give the agency no less than 30 days' 
notice, in writing, of the intention to 
take leave, subject to ffie actual date of 
the birth or adoption. If the date of the 
birth or adoption requires leave to 
begin in less than 30 days, the employ- 
ee shall provide such notice as is practi- 
cable. 

(2) Planned Medical Treatment z When the 
necessity for leave to care for the 
employee's child, spouse or parent or 
because the employee has a serious 
health condition, the employee must 
make a reasonable effort to schedule the 
treatment so as not unduly to disrupt 
operations, subject to the approval of 
the employee's health care provider or 
the health care provider of the 
employee's child, spouse or parent . 
The employee must also give 30 day's 
notice of the intention to take leave, 
subject to the actual date of the 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



287 



PROPOSED RULES 



treatment, 
(b) If the employee will not return to work, the 
agency should be notified immediately. Failure to 
report at the expiration of the leave, unless an 
extension has been requested, may be considered 
as a resignation. 

Statutory Authority G.S. 126-4(5); P. L. 103-3. 

.1407 CERTIFICATION 

(a) The agency may require that a claim for 
leave because of adoption be supported by 
acceptable proof of adoption. 

(b) The agency may require that a claim for 
leave because of a serious illness of the employee 
or of the employee's child, spouse, or parent be 
supported by a doctor's certification which 
includes the following: 

( 1 ) The date on which the serious health 
condition began; 

(2) The probable duration of the condition; 

(3) The appropriate medical facts regarding 
the condition; 

(4) A statement that the leave is needed to 
care for the child, spouse, or parent, 
and an estimate of the amount of time 
that is needed; or that the employee is 
unable to perform the functions of the 
position, whichever applies; and 

(5) Where certification is necessary for 
intermittent leave for planned medical 
treatment, the dates on which the 
treatment is expected to be given and 
the duration of the treatment. 

(c) Where the agency has reason to doubt the 
validity of the certification, the agency may 
require the employee to get the opinion of a 
second doctor designated or approved by the 
agency. Where the second opinion differs from 
the opinion in the original certification provided. 
the agency may require the employee to get the 
opinion of a third doctor designated or approved 
jointly by the employer and the employee. The 
third opinion is final and is binding on the agency 
and the employee. The agency may require that 
the employee get subsequent recertifications on a 
reasonable basis. The second and third certifica- 
tion and the recertifications must be at the 
agency's expense. 

Statutory Authority G.S. 126-4(5); P. L. 103-3. 



reinstated to the same position held when the leave 
began or one of like status, pay, benefits, and 
other conditions of employment. The agency may 
require the employee to report at reasonable 
intervals to the employer on the employee's status 
and intention to return to work. The agency also 
may require that the employee receive certification 
that the employee is able to return to work. 

(b) Benefits - The employee shall be reinstated 
without loss of benefits accrued when the leave 
began. All benefits accrue during any period of 
paid leave; however, no benefits will be accrued 



during any period of leave without pay. 

(c) Health Benefits - The State shall maintain 
coverage for the employee under the State's group 
health plan for the duration of leave at no cost to 
the employee. The agency may recover the 
premiums if the employee fails to return after the 
period of leave to which the employee is entitled 
has expired for a reason other than the continua- 
tion, recurrence, or onset of a serious health 
condition or other circumstances beyond the 
employee's control. 

Statutory Authority G.S. 126-4(5); P.L. 103-3. 

.1409 INTERFERENCE WITH RIGHTS 

(a) Actions Prohibited ; It is unlawful to inter- 
fere with, restrain, or deny any right provided by 
this policy or to discharge or in any other manner 
discriminate against an employee for opposing any 
practice made unlawful by this Rule. - 

(b) Protected Activity - It is unlawful to dis- 
charge or in any other manner discriminate against 
any employee because the employee does any of 
the following: 

Files any civil action, or institutes or 



01 



ill 



13] 



causes to be instituted any civil pro- 
ceeding under or related to this Rule; 
Gives, or is about to give, any informa- 
tion in connection with any inquiry or 
proceeding relating to any right provid- 
ed by this Rule; or 

Testifies, or is about to testify, in any 
inquiry' or proceeding relating to any 
right provided under this Rule. 



Statutory Authority G.S. 126-4(5); P.L. 103-3. 

SUBCHAPTER 1J - EMPLOYEE 
RELATIONS 



.1408 EMPLOYMENT AND BENEFITS 
PROTECTION 

(a) Reinstatement = The employee shall be 



SECTION .0800 - GOVERNOR'S AWARD 
FOR EXCELLENCE 



288 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



PROPOSED RULES 



.0802 AWARDS COMMITTEE 

The Awards program io administer e d by the Stat e 
Personnel Commission, with one m e mb e r of the 
commi s sion serving as chairp e rson for th e Award s 
Committ ee . — The Governor will make oth e r ap 
pointmento to the committee to assi s t th e commi s 
sion in the sel e ction of the final awards. — The 
duties of the committee are as follows: 

(4-) Each year the committ ee shall recom 

mend to th e Governor the week to be 
proclaim e d — as — "North — Carolina — State 
Employ ee s Appreciation Week." 

(3) Th e committ ee s hall mak e annual s cleo 

tion of tho s e s tate e mployees to reoeive 
the Governor's Award for Exc e ll e nc e . 

(a) The Awards program is administered by the 
State Personnel Commission with administrative 
support provided by the Office of State Personnel. 
A Governor's Awards Committee for Recognition 
of State Employees shall be established and shall 
consist of five members with the chairperson being 
a member of the State Personnel Commission 
appointed by its chairperson. The chairperson 
shall serve at the pleasure of the State Personnel 
Commission. At any time when over two people 
are to be appointed, two members shall be appoint- 
ed for a term of two years and one or two mem- 
bers shall be appointed for a term of four years. 
Upon the expiration of the respective terms, the 
successors are appointed for a term of four years. 
Two members shall be current or former State 
employees and two shall be from the private 
business sector or the public at large. 

(b) The awards shall be presented annually each 
fall. The Committee will select the employees to 
receive the Governor's Award for Excellence from 
among the nominations submitted by each depart- 
ment and university. 

(c) The Office of State Personnel shall recom- 
mend to the Governor the week to be proclaimed 
as "North Carolina State Employees Appreciation 
Week" and coordinate a date for the awards 
ceremony. 

Statutory Authority G.S. 126-4(15). 



8:3 NORTH CAROLINA REGISTER May 3, 1993 289 



LIST OF RULES CODIFIED 



The 


List of Rules 


Codified 


is a listing of rules that were filed with OAH in the month indicated. 


K.ey 












Citation 




= 


Title, Chapter, Subchapter and Rule(s) 




AD 




= 


Adopt 




AM 




= 


Amend 




RP 




= 


Repeal 




With Chgs 




= 


Final text differs from proposed text 




Corr 




= 


Typographical errors or changes that requires no rulemaking 




Eff. Date 




= 


Date rule becomes effective 




Temp. Exp 


ires 


— 


Rule was filed as a temporary rule and expires on this date or 180 days 



\ 



NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 



DEPARTMENT 



2 


Agriculture 


4 


Economic and Community 




Development 


U) 


Human Resources 


11 


Insurance 


12 


Justice 


15A 


Environment, Health 




and Natural Resources 



MARCH 93 




TITLE 


DEPARTMENT 


21 


Occupational Licensing Boards 




18 - Electrical Contractors 




21 - Geologists 




32 - Medical Examiners 




42 - Optometry 




48 - Physical Therapy 


24 


Independent Agencies 




3 - Safety and Health Review Board 


25 


State Personnel 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


2 NCAC 48F .0301 - .0302 




/ 




/ 




04/01/93 




4 NCAC 16A .0105 




/ 




/ 




04/15/93 




16D .0101 




/ 








04/15/93 




.0105 






/ 






04/15/93 




16E .0105 






/ 






04/15/93 




16G .0312 




/ 








04/15/93 




.0510 




/ 








04/15/93 




.0513 




/ 








04/15/93 




.0721 






/ 






04/15/93 




.1203 - .1204 




/ 








04/15/93 




10 NCAC 3R .3001 




/ 








04/02/93 


180 DAYS 





i 



290 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



LIST OF RULES CODIFIED 



> 



) 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.3020 




/ 








04/02/93 


180 DAYS 


14C .1115 




/ 




/ 




04/01/93 




18A .0605 


/ 










04/01/93 




26B .0119 




/ 








04/01/93 




.0121 




/ 








04/01/93 




45 H .0203 




/ 








04/01/93 




50B .0201 




/ 




/ 




04/01/93 




.0202 




/ 








04/01/93 




.0203 




/ 




/ 




04/01/93 




.0206 




/ 








04/01/93 




.0301 




/ 








04/01/93 




.0306 




/ 








04/01/93 




.0308 




/ 








04/01/93 




.0313 




/ 








04/01/93 




.0403 




/ 








04/01/93 




.0406 




/ 








04/01/93 




11 NCAC 4 .0418 -.0419 




/ 








04/01/93 




.0421 




/ 




/ 




04/01/93 




.0423 




/ 








04/01/93 




.0424 






/ 






04/01/93 




.0431 


/ 










04/01/93 




11A .0101 






/ 






04/01/93 




.0102 




/ 








04/01/93 




.0103 - .0104 






/ 






04/01/93 




.0105 




/ 








04/01/93 




.0107 - .0108 






/ 






04/01/93 




.0401 - .0407 






/ 






04/01/93 




.0409 - .0432 






/ 






04/01/93 




.0435 - .0449 






/ 






04/01/93 




.0452 - .0457 






/ 






04/01/93 




.0460 - .0493 






/ 






04/01/93 




.0501 - .0502 




/ 




/ 




04/01/93 




11 NCAC 11A .0503 




/ 








04/01/93 







8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



291 



LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0505 - .0508 




/ 








04/01/93 




.0510- .0511 




/ 








04/01/93 




.0513 




/ 








04/01/93 




1 IB .0101 - .0103 






/ 






04/01/93 




.0104 




/ 








04/01/93 




.0105 






/ 






04/01/93 




.0107 






/ 






04/01/93 




.0108 - .0110 




/ 








04/01/93 




.0113 




/ 








04/01/93 




.0116 - .0118 






/ 






04/01/93 




.0119 




/ 




/ 




04/01/93 




.0121 






/ 






04/01/93 




.0131 




/ 








04/01/93 




.0132 






/ 






04/01/93 




.0143 






/ 






04/01/93 




.0202 - .0214 






/ 






04/01/93 




.0215 


/ 










04/01/93 




.0216 


/ 






/ 




04/01/93 




.0217- .0221 


/ 










04/01/93 




.0222 


/ 






/ 




04/01/93 




.0223 


/ 










04/01 93 




.0305 




/ 




/ 




04/01/93 




.0402 - .0407 






/ 






04/01/93 




.0501 






/ 






04 -'01/93 




.0503 




/ 








04/01/93 




.0506 - .0507 


/ 










04 01 93 




.0508 


/ 






/ 




04/01/93 




.0509 - .0513 


/ 










04/01/93 




.0514 


/ 






/ 




04/01 93 




.0515 


/ 










04/01/93 




.0516 


/ 






/ 




04/01/93 




.0517 


/ 










04/01/93 




11 NCAC 11 B .0518 


/ 






/ 




04'01 93 







292 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0601 - .0602 




/ 








04/01/93 




.0604 




/ 








04/01/93 




.0608 




/ 




/ 




04/01/93 




.0609 




/ 








04/01/93 




.0612 




/ 




/ 




04/01/93 




.0615 


/ 










04/01/93 




11C .0103 




/ 








04/01/93 




.0107 






/ 






04/01/93 




.0108 - .0109 




/ 








04/01/93 




.0111 






/ 






04/01/93 




.0114 




/ 




/ 




04/01/93 




.0115 - .0116 






/ 






04/01/93 




.0117 




/ 




/ 




04/01/93 




.0118 




/ 








04/01/93 




.0121 






/ 






04/01/93 




.0123 






/ 






04/01/93 




.0127- .0128 






/ 






04/01/93 




.0129 




/ 








04/01/93 




.0132 


/ 






/ 




04/01/93 




.0202 - .0205 






/ 






04/01/93 




.0206 


/ 






/ 




04/01/93 




.0302 - .0306 






/ 






04/01/93 




.0307- .0312 


/ 






/ 




04/01/93 




.0403 




/ 








04/01/93 




.0501 


/ 






/ 




04/01/93 




.0502 


/ 










04/01/93 




.0503 


/ 






/ 




04/01/93 




.0601 - .0605 


/ 










04/01/93 




1 ID .0104 




/ 








04/0193 




.0105 - .0106 






/ 






04/01/93 




.0108 - .0109 




/ 








04/01/93 




.0111 - .0112 




/ 








04/01/93 




11 NCAC 11D .01 13 -.01 14 






/ 






04/01/93 







8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



293 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0115 




/ 








04/01/93 




.0118 




/ 








04/01/93 




.0145 - .0147 




/ 








04/01/93 




.0153 




/ 








04/01/93 




.0159 - .0160 




/ 








04/01/93 




.0168 




/ 








04/01/93 




.0202 






/ 






04/01/93 




.0302 




/ 








04/01/93 




.0303 




/ 




/ 




04/01/93 




.0304 




/ 








04/01/93 




.0305 




/ 




/ 




04/01/93 




HE .0102 -.0105 






/ 






04/01/93 




.0201 






/ 






04/01/93 




.0202 




/ 








04/01/93 




.0203 


/ 










04/01/93 




.0306 - .0310 






/ 






04/01/93 




.0402 - .0405 






/ 






04/01/93 




1 IF .0002 - .0004 






/ 






04/01/93 




.0006 - .0010 






/ 






04/01/93 




11H .0002 


/ 






/ 




04/01/93 




.0003 - .0010 


/ 










04/01/93 




12 .1301 - .1308 


/ 










04/01/93 




.1309 


/ 






/ 




04/01/93 




14 .0301 - .0308 






/ 






04/01/93 




.0502 




/ 








04/01/93 




.0505 




/ 








04/01/93 




.0603 - .0604 




/ 








04/01/93 




12 NCAC 7D .0205 


/ 






/ 




04/01/93 




15A NCAC 2B .0309 




/ 








04/01/93 




.0503 




/ 




/ 




04/01/93 




.0504 




/ 








04/01/93 




.0505 - .0506 




/ 




/ 




04/01/93 




15A NCAC 2B .0508 




/ 




/ 




04/01/93 







294 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


2H .1103 




/ 




/ 




04/01/93 




7H .0308 










/ 






6C .0417 




/ 








04/05/93 


180 DAYS 


7H .0208 




/ 








04/01/93 




13A .0001 




/ 








04/01/93 




.0002 




/ 




/ 




04/01/93 




.0003 - .0012 




/ 








04/01/93 




.0013 




/ 




/ 




04/01/93 




.0014 




/ 








04/01/93 




13B .1201 




/ 








04/01/93 




.1203 




/ 








04/01/93 




.1207 




/ 








04/01/93 




16A .0401 






/ 






04/01/93 




.1101 


/ 










04/01/93 




.1102 


/ 






/ 




04/01/93 




.1103 


/ 










0401/93 




.1104 


/ 






/ 




04/01/93 




.1105 


/ 










04/01/93 




.1106 


/ 






/ 




04/01/93 




.1107- .1108 


/ 










04/01/93 




.1150- .1151 


/ 










04/01/93 




.1201 - .1203 


/ 










04/01/93 




.1204 


/ 






/ 




04/01/93 




.1205 - .1207 


/ 










04/01/93 




.1208 - .1209 


/ 






/ 




04/01/93 




18A .1948 




/ 




/ 




04/01/93 




.1956 - .1957 




/ 








04/01/93 




.1969 


/ 






/ 




04/01/93 




19B .0313 




/ 




/ 




04/01/93 




.0320- .0321 




/ 








04/01/93 




.0503 




/ 








04/01/93 




20D .0233 




/ 








04/01/93 




15A NCAC 20D .0235 




/ 








04/01/93 







8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



295 



LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0243 




/ 








04/01/93 




.0248 




/ 








04/01/93 




24A .0101 




/ 




/ 




04/01/93 




21 NCAC 18B .0104 




/ 








04/01/93 




.0203 




/ 








04/01/93 




.0206 




/ 








04/01/93 




.0306 




/ 








04/01/93 




.0401 




/ 








04/01/93 




.0403 




/ 








04/01/93 




.1001 




/ 








04/01/93 




.1003 




/ 








04/01/93 




.1103 




/ 








04/01/93 




21 .0107 










/ 






32H .0101 




/ 








04/01/93 




.0102 




/ 




/ 




04/01/93 




.0201 




/ 




/ 




04/01/93 




.0202 




/ 








04/01/93 




.0301 - .0302 




/ 








04/01/93 




.0303 




/ 




/ 




04/01/93 




.0401 




/ 








04/01/93 




.0402 - .0403 




/ 




/ 




04/01/93 




.0404 - .0405 




/ 








04/01/93 




.0406 - .0407 




/ 




/ 




04/01/93 




.0501 - .0505 




/ 








04/01/93 




.0601 - .0602 




/ 








04/01/93 




.0701 




/ 








04/01/93 




.0801 




/ 




/ 




04/01/93 




.0802 




/ 








04/01/93 




.0901 




/ 




/ 




04/01/93 




.1001 - .1004 




/ 








04/01/93 




21 NCAC 42A .0001 




/ 








04/01/93 




.0005 




/ 








04/01/93 




21 NCAC 42B .0101 




/ 








04/01/93 







296 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



LIST OF RULES CODIFIED 



> 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0103 - .0104 




/ 








04/01/93 




.0107 




/ 




/ 




04/01/93 




.0110 




/ 








04/01/93 




.0113 


/ 










04/01/93 




.0201 




/ 








04/01/93 




.0202 




/ 




/ 




04/01/93 




.0203 - .0204 


/ 






/ 




04/01/93 




.0302 




/ 




/ 




04/01/93 




42E .0102 - .0103 




/ 




/ 




04/01/93 




.0203 




/ 




/ 




04/01/93 




.0301 




/ 








04/01/93 




42L .0002 




/ 




/ 




04/01/93 




.0004 


/ 






/ 




04/01/93 




.0005 




/ 




/ 




04/01/93 




42M .0001 


/ 






/ 




04/01/93 




.0002 - .0003 


/ 










04/01/93 




.0004 


/ 






/ 




04/01/93 




.0005 


/ 










04/01/93 




.0006 


/ 






/ 




04/01/93 




48A .0001 




/ 








04/01/93 




24 NCAC 3 .0505 




/ 




/ 




04/01/93 




.0506 




/ 








04/01/93 




.0602 




/ 








04/01/93 




25 NCAC ID .0511 




/ 




/ 




04/01/93 





> 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



297 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



COMMERCE 
Banking Commission 

4 NCAC 3F .0402 - Required and Permissible Investments 

Agency Withdrew Rule 
Savings Institutions Division: Savings Institutions Commission 

4 NCAC I6A .0105 - Restrictions: Payment of Dividends & Repurchase of Stock 

Agency Revised Rule 
4 NCAC 16G .031 1 - Required Provisions in Plan of Conversion 

Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Adult Health 

15 A NCAC 16A .1208 - Use of Program Funds 
Agency Revised Rule 

Coastal Management 

15A NCAC 7H .0308 - Specific Use Standards for Ocean Hazard Areas 
Rule Returned to Agency 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 

15 A NCAC 7H .1205 - Specific Conditions 

Environmental Health 

15A NCAC 18A .1948 - Site Classification 
Agency Revised Rule 

Environmental Management 

15A NCAC 2H .1103 - Definitions 

Agency Revised Rule 
15 A NCAC 2H .1110- Implementation 

Agency Responded 



RRC Objection 
Obj. Cont'd 



RRC Objection 
Obj. Removed 
RRC Objection 
RRC Objection 



01/21/93 
02/18/93 
03/19/93 



03/18/93 
03/18/93 
03/18/93 
03/18/93 



RRC Objection 
Obj. Removed 



RRC Objection 
RRC Objection 

Eff. 

RRC Objection 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Cont'd 



03/18/93 
03/18/93 



11/19/92 
12/17/92 
01/21/93 
02/18/93 
03/01/93 
03/18/93 



03/18/93 
03/18/93 



02/18/93 
03/18/93 
02/18/93 
03/18/93 



Laboratory Services 

ISA NCAC 20D .0234 - Criteria & Procedures: Decert. /Denial/Downgrading RRC Objection 03/18/93 
Solid Waste Management 



298 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



RRC OBJECTIONS 



15A NCAC 13A .0013 - The Hazardous Waste Permit Program - Part 270 
Agency Revised Rule 

Wildlife Resources and Water Safety 



RRC Objection 
Obj. Removed 



03/18/93 
03/18/93 



15 A NCAC 101 .0001 - Definitions 
Agency Responded 
Agency Responded 
Rule Returned to Agency 

HUMAN RESOURCES 

Children's Services 

10 NCAC 41E .0514 - Child Care & Development: Health 
10 NCAC 41 Q .0201 - Personnel 

Medical Assistance 

10 NCAC 50B .0203 - Application Processing Standards 
Agency Revised Rule 

INDEPENDENT AGENCIES 



RRC Objection 10/15/92 

Obj. Cont'd 11/19/92 

Obj. Cont'd 12/17/92 

01/21/93 



RRC Objection 
RRC Objection 



RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 



03/18/93 
03/18/93 



N.C. Housing Finance Agency 

24 NCAC 1M .0202 - Eligibility 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC 1M .0204 - Selection Procedures 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC 1M .0205 - Administration 

No Response from Agency 

No Response from Agency 

Agency Repealed Rule 
24 NCAC 1M .0206 - Program Fees 

No Response from Agency 

No Response from Agency 

Agency Withdrew Rule 
24 NCAC 1M .0301 - Goal and Objectives 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC 1M .0302 - Eligibility Requirements 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC 1M .0303 - Threshold Review Criteria 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC 1M .0306 - Funding Commitment 



RRC Objection 


10/15/92 


Obj. Cont'd 


11/19/92 


Obj. Cont'd 


12/17/92 


Obj. Removed 


01/21/93 


RRC Objection 


10/15/92 


Obj. Cont'd 


11/19/92 


Obj. Cont'd 


12/17/92 


Obj. Removed 


01/21/93 


RRC Objection 


10/15/92 


Obj. Cont'd 


11/19/92 


Obj. Cont'd 


12/17/92 


Obj. Removed 


01/21/93 


RRC Objection 


10/15/92 


Obj. Cont'd 


11/19/92 


Obj. Cont'd 


12/17/92 




01/21/93 


RRC Objection 


10/15/92 


Obj. Cont'd 


11/19/92 


Obj. Cont'd 


12/17/92 


Obj. Removed 


01/21/93 


RRC Objection 


10/15/92 


Obj. Cont'd 


11/19/92 


Obj. Cont'd 


12/17/92 


Obj. Removed 


01/21/93 


RRC Objection 


10/15/92 


Obj. Cont'd 


11/19/92 


Obj. Cont'd 


12/17/92 


Obj. Removed 


01/21/93 


RRC Objection 


10/15/92 


May 3, 1993 


299 



8:3 



NORTH CAROLINA REGISTER 



RRC OBJECTIONS 



No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0401 - Goals and Objectives 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0402 - Eligibility Requirements 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0403 - Threshold Review Criteria 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0404 - Ranking Criteria 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0405 - Agency Board Approval 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 



Obj. 


Cont 'd 


11/19/92 


Obj. 


Cont 'd 


12/17/92 


Obj. 


Removed 


01/21/93 


RRC 


' Objection 


10/15/92 


Obj. 


Cont'd 


11/19/92 


Obj. 


Cont'd 


12/17/92 


Obj. 


Removed 


01/21/93 


RRC 


' Objection 


10/15/92 


Obj. 


Cont 'd 


11/19/92 


Obj. 


Cont 'd 


12/17/92 


Obj. 


Removed 


01/21/93 


RRC 


' Objection 


10/15/92 


Obj. 


Cont 'd 


11/19/92 


Obj. 


Cont'd 


12/17/92 


Obj. 


Removed 


01/21/93 


RRC 


' Objection 


10/15/92 


Obj. 


Cont 'd 


11/19/92 


Obj. 


Cont 'd 


12/17/92 


Obj. 


Removed 


01/21/93 


RRC 


Objection 


10/15/92 


Obj. 


Cont'd 


11/19/92 


Obj. 


Cont 'd 


12/17/92 


Obj. 


Removed 


01/21/93 



INSURANCE 



Consumer Services 



11 NCAC 4 .0428 - Enforcement 
Agency Revised Rule 



RRC Objection 
RRC Objection 



03/18/93 
03/18/93 



Financial Evaluation Division 



11 NCAC 11 A .0602 - Licensure 
Agency Revised Rule 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

11 NCAC 1 IB .0508 - Foreign Company Securities: Verifiable Capital/Surplus 

Agency Revised Rule 
11 NCAC 11B .0607 - Application - Employers 
11 NCAC 11B .0608 - Deposits: Bonds: Excess Insurance - Employers 

Agency Revised Rule 
11 NCAC 1 IB .0610 - Application - Groups 
11 NCAC 11H .0002 - License - Steps 

Agency Revised Rule 



RRC Objection 


11/19/92 


RRC Objection 


11/19/92 




12/17/92 


Eff. 


12/29/92 


RRC Objection 


03/18/93 


Obj. Removed 


03/18/93 


RRC Objection 


03/18/93 


RRC Objection 


03/18/93 


Obj. Removed 


03/18/93 


RRC Objection 


03/18/93 


RRC Objection 


03/18/93 


Obj. Removed 


03/18/93 



JUSTICE 



Private Protective Services 



12 NCAC 7D .0205 - Corporate Business License 

Agency Revised Rule 
12 NCAC 7D .0809 - Authorized Firearms 



RRC Objection 02/18/93 
Obj. Removed 03/18/93 
RRC Objection 04/15/93 



LICENSING BOARDS AND COMMISSIONS 



300 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



RRC OBJECTIONS 



Electrical Contractors 



21 NCAC 18B .0703 - Reciprocity: Virginia 
Rule Returned to Agency - Improper Notice 



RRC Objection 
Obj. Cont'd 



02/18/93 
02/18/93 



Medical Examiners 



21 NCAC 32A .0001 - Location 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0101 - Definitions 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0209 - Fee 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0210 - Deadline 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0211 - Passing Score 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0212 - Time and Location 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0213 - Graduate Medical Ed & Training for Licensure 

Rule Returned to Agency 1 - Improper Notice 
21 NCAC 32B .0214 - Personal Interview 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0215 - Examination Combinations 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0305 - Examination Basis for Endorsement 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0309 - Personal Interview 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0314 - Passing Flex Score 

Rule Returned to Agency' - Improper Notice 
21 NCAC 32B .0315 - Ten Year Qualification 

Rule Returned to Agency - Improper Notice 
21 NCAC 32C .0003 - Prerequisites for Incorporation 

Rule Returned to Agency - Improper Notice 
21 NCAC 32C .0006 - Charter Amendments and Stock Transfers 

Rule Returned to Agency - Improper Notice 
21 NCAC 32H .0102- Definitions 

Agency Revised Rule 
21 NCAC 32H .0901 - Conditions 

Agency Revised Rule 



RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


02/18/93 


Obj. Cont'd 


02/18/93 


RRC Objection 


03/18/93 


Obj. Removed 


03/18/93 


RRC Objection 


03/18/93 


Obj. Removed 


03/18/93 



Optometry 



21 NCAC 42B .0302 - Continuing Education 

Agency Revised Rule 
21 NCAC 42E .0203 - Consultant: Advisor, Staff Optometrist I Ind Contractor 

Agency Revised Rule 
21 NCA C 42L . 0005 - Written Answers to the Notice of Hearing 

Agency Revised Rule 
21 NCAC 42M .0006 - Termination 

Agency Revised Rule 



RRC Objection 


03/18/93 


Obj. Removed 


03/18/93 


RRC Objection 


03/18/93 


Obj. Removed 


03/18/93 


RRC Objection 


03/18/93 


Obj. Removed 


03/18/93 


RRC Objection 


03/18/93 


Obj. Removed 


03/18/93 



REVENUE 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



301 



RRC OBJECTIONS 



Individual Income Tax Division 



1 7 NCA C 6B .0107 - Extensions 

Agency Revised Rule 
17 NCAC 6B .0115 - Additions to Federal Taxable Income 

Agency Revised Rule 
17 NCAC 6B .01 16 - Deductions from Federal Taxable Income 

Agency Revised Rule 
1 7 NCA C 6B .0117 - Transitional Adjustments 

Agency Revised Rule 
1 7 NCA C 6B . 3406 - Refunds 

Agency Revised Rule 



RRC 


' Objection 


08/20/92 


Obj. 


Removed 


09/17/92 


RRC 


' Objection 


08/20/92 


Obj. 


Removed 


09/17/92 


RRC 


' Objection 


08/20/92 


Obj. 


Removed 


09/17/92 


RRC 


' Objection 


08/20/92 


Obj. 


Removed 


09/17/92 


RRC 


' Objection 


08/20/92 


Obj. 


Removed 


09/17/92 



« 



STATE PERSONNEL 



Office of State Personnel 



25 NCAC ID .0511 - Reduction in Force Priority Consideration 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



03/18/93 
03/18/93 



i 



I 



302 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and The North Carolina Department of Administration, Respondent and 
The University of Southern California, Intervenor-Respondent (92 DOA 0666). 

10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS 

Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human 
Resources, Division of Facility Services, Licensure Section, Respondent (92 DHR 1192). 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann III, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries, Respondent (92 EHR 0820). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment, 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Environment , Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief, Communicable Disease Control Section of the North Carolina Department of Environment, Health, and 
Natural Resources, Wayne Bobbin Jr. , as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment, Health, and Natural Resources, Respondents (91 EHR 0818). 



8:3 NORTH CAROLINA REGISTER May 3, 1993 303 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



♦ 



AGENCY 



CASE 
NUMBER 



AL.J 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 



McLaurin Parking Co. v. Administration 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 



92 DO A 1662 



Morrison 04/02/93 



8:3 NCR 320 



Alcoholic Beverage Control Comm. v. Ann Oldham McDowell 
Alcoholic Beverage Control Comm. v. Gary Morgan Neugent 
Alcoholic Beverage Control Comm. v. Larry Isacc Hailstock 
Alcoholic Bev. Control Comm. v. Mild &. Wild, Inc.. Sheila Scholz 



92 ABC 0260 


Morgan 


04/01/93 


92 ABC 1086 


Becton 


03/22/93 


92 ABC 1483 


Reilly 


04/07/93 


93 ABC 1475 


Nesnow 


03/23/93 



COMMERCE 



Lester Moore v. Wealherization Assistance Program 
CRIME CONTROL AND PUBLIC SAFETY 



93 COM 0105 



Gray 



03/08/93 



Anthony L. Hart v. Victims Compensation Comm. 
Jennifer Ayers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
Moses H. Cone Mem Hosp v. Victims Compensation Comm. 

ENVIRONMENT, HEALTH. AND NATURAE RESOURCES 

Charles L. Wilson v. Environment, Health, & Natural Resources 
Utley C. Stallingsv. Environment, Health, & Natural Resources 
Safeway Removal, Inc. v. Environment, Health, & Natural Res. 
Elizabeth City /Pasquotank Cty Mun Airport Auth v. EHNR 
Willie M. Watford v. Hertford Gates District Health Department 
Angela Power, Albert Power v. Children's Special Health Sves. 
Mustafa E. Essa v. Environment, Health, &. Natural Resources 



92 CPS 0937 


Chess 


03/01/93 


92 CPS 1195 


Reilly 


03/19/93 


92 CPS 1787 


Reilly 


03/26/93 


93 CPS 0152 


Nesnow 


04/02/93 



91 EHR 0664 


Morgan 


03/23/93 


92 EHR 0062 


Gray 


03/15/93 


92 EHR 0826 


West 


03/12/93 


92 EHR 1140 


Gray 


04/13/93 


92 EHR 1600 


Chess 


03/24/93 


93 EHR 0008 


Becton 


03/24/93 


93 EHR 0146 


Gray 


03/29/93 



8:3 NCR 327 



( 



8:1 NCR 83 



HUMAN RESOURCES 

O.C. Williams v. Human Resources 
O.C. Williams v. Human Resources 
William A. Dixon v. Human Resources 
Gregory L. Washington v. Human Resources 
Dwayne Allen v. Human Resources 
Edwin Ivester v. Human Resources 
Barbara W. Catlett V. Human Resources 
Barbara Jones v. Human Resources 
Ida Diane Davis v. Human Resources 
Edward E. Brandon v. Human Resources 
Michelle D. Mobley v. Human Resources 
Joyce P. Williams v. Human Resources 
Eric Stanley Stokes v. Human Resources 
Lyndell Greene v. Human Resources 
Leroy Snuggs v. Human Resources 
James P Miller III v Human Resources 
Larry L. Crowderv. Human Resources 



Consolidated cases. 



91 CSE 0036* : 


Morgan 


03/30/93 


91 CSE 1 158*- 


Morgan 


03/30/93 


91 CSE 1277 


Morrison 


03/04/93 


92 CSE 0075 


Morgan 


04/01/93 


92 CSE 0196 


Morgan 


03/31/93 


92 CSE 0268 


Nesnow 


03/30/93 


92 DCS 0577 


West 


03/15/93 


92 DHR 1192 


Nesnow 


04/02/93 


92 DCS 1200 


Gray 


03/29/93 


92 CSE 1237 


Gray 


04/16/93 


92 CSE 1256 


Nesnow 


04/15/93 


92 DHR 1275 


Grav 


03/15/93 


92 CSE 1316*' 


Reilly 


03/25/93 


92 CSE 1346 


Nesnow 


04/16/93 


92 CSE 1360 


Morrison 


04/15/93 


92 CSE 1361 


Gray 


04/16/93 


92 CSE 1396 


Reilly 


04/15/93 



8:3 NCR 313 



I 



304 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



Carlos Bernard Davis v. Human Resources 

Charles S. Ferrer v. Human Resources 

Roy Chester Robinson v. Human Resources 

William E. Ingram v. Human Resources 

Jo Ann Kinsey v. NC Memorial Hospital Betty Hulton, Volunteer Svc. 

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc. 

Betty Butler v. Human Resources 

Billy Smith v. Human Resources 

Anthony Curry v. Human Resources 

Larry W. Golden v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Samuel Benson V. Office of Admin. Hearings for Medicaid 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92 CSE 1404 


Reilly 


04/15/93 


92 CSE 1416 


Mann 


04/15/93 


92 CSE 1423 


Reilly 


04/15/93 


92 CSE 1450 


Reilly 


04/15/93 


92 DHR 1612 


Chess 


03/08/93 


92 DHR 1613 


Chess 


03/08/93 


92 DHR 1614 


Chess 


03/09/93 


92 CSE 1629 


Reilly 


03/25/93 


92 CSE 1631 


Reilly 


03/25/93 


92 CSE 1633 


Reilly 


03/25/93 


92 CSE 1652* 3 


Reilly 


03/25/93 


93 DHR 0010 


Becton 


03/11/93 



PUBLISHED DECISION 
REGISTER CITATION 



INSURANCE 



Carolyn M. Hair v. St Employees Comprehensive Major Medical 
JUSTICE 



92 INS 1464 



Chess 



03/10/93 



Marilyn Jean Britt v. Criminal Justice Ed. & Training Stds. Comm. 
Tim McCoy Deck v. Criminal Justice Ed. &. Training Stds. Comm. 
Sherri Ferguson Revis v. Sheriffs' Ed. & Training Stds. Comm. 

LABOR 



92 DOJ 1088 


Morrison 


03/16/93 


92 DOJ 1367 


Chess 


04/01/93 


92 DOJ 1756 


Gray 


03/23/93 



Greensboro Golf Center, Inc. v. Labor 



92 DOL 0204 



Nesnow 



04/15/93 



STATE PERSONNEL 

Brenda G. Mitchell v. Correction 

Clayton Brewer v. North Carolina State University 

Donnie M. White v. Correction 

Willie Granville Bailey v. Winston-Salem State University 

James B. Price v. Transportation 

Deborah Barber v. Correction 

Laverne B. Hill v. Transportation 

Jimmy D. Wilkins v. Transportation 

Glinda C. Smith v. Wildlife Resources Commission 

Willie Thomas Hope v. Transportation 

Suzanne Ransley Hill v. Environment, Health, & Nat. Res. 

John B. Sauls v. Wake County Health Department 

Joseph Henry Bishop v. Environment, Health, & Natural Res. 

Brenda K. Campbell v. Employment Security Commission 

James B. Price v. Transportation 

Betty Bradsherv. UNC-CH 

Jamal Al Bakkat-Morris v. Glenn Sexton (DSS) 

Brenda Kay Barnes v. Human Resources 

Barbara A. Johnson v. Human Resources 

Carrie P. Smith v. County of Stanly 

George W. Allen v. Human Resources, Correction, Agri & EHNR 

STATE TREASURER 

Herman D. Brooks v. Bd of Trustees /Teachers* &. St Emp Ret Sys 
Henrietta Sandlin v. Teachers" &. State Emp Comp Major Medical Plan 
Mary Alyce Carmichael v. Bd /Trustees /Teachers* & St Emp Ret Sys 

TRANSPORTATION 



91 OSP 0625 


West 


03/08/93 


8:1 NCR 75 


91 OSP 0941 


West 


04/02/93 


8:3 NCR 306 


91 OSP 1236 


Morgan 


04/05/93 




92 OSP 0285 


Morrison 


03/10/93 




92 OSP 0375 


Gray 


04/13/93 




92 OSP 0396 


Chess 


03/04/93 




92 OSP 043 1* 1 


West 


03/08/93 




92 OSP 0432* 1 


West 


03/08/93 




92 OSP 0653 


Morrison 


03/12/93 




92 OSP 0947 


Morgan 


03/23/93 




92 OSP 0992 


Reilly 


03/18/93 


8:2 NCR 224 


92 OSP 1142 


Reilly 


03/08/93 


8:1 NCR 88 


92 OSP 1243 


Reilly 


03/05/93 




92 OSP 1505 


Morrison 


03/17/93 




92 OSP 1657 


Mann 


03/19/93 




92 OSP 1733 


Becton 


03/30/93 




92 OSP 1741 


Becton 


03/24/93 




92 OSP 1768 


Morrison 


03/17/93 




93 OSP 0103 


Morrison 


03/17/93 




93 OSP 0109 


Becton 


04/01/93 




93 OSP 0111 


Reilly 


04/16/93 





91 DST0566 


Gray 


04/13/93 


92 DST 0305 


Morgan 


04/12/93 


92 DST 1506 


Chess 


04/08/93 



Yates Construction Co., Inc. v. Transportation 



92 DOT 1800 Morgan 03/25/93 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



305 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF . 
ADMTNISTRATTVE HEARINGS 
91 OSP 0941 



♦ 



CLAYTON BREWER, 
Petitioner, 

v. 

NORTH CAROLINA STATE UNTVERSITY, 
Respondent. 



RECOMMENDED DECISION 



This contested case was brought by Clayton Brewer ("Brewer") against North Carolina State 
University ("State"). State terminated Brewer's employment in its Physical Plant Division on May 24, 1991 
as a result of alleged improper personal conduct. Brewer contested his dismissal through all required internal 
grievance procedures. This contested case was heard May 20-22, 1992 in Raleigh by Administrative Law 
Judge Thomas R. West. 

ISSUES 

1. Did Petitioner knowingly and willfully disclose false or misleading information; or conceal prior 

employment history or other requested information in his application for employment at N.C. State 
University in the manner alleged in the letter of May 24, 1991 dismissing him from employment? 

i. If so, were the disclosures or concealments significantly related to Petitioner's job responsi- 

bilities? 



i 



ii. If so, were the disclosures made in order to meet position qualifications? 

WITNESSES 



For Respondent: 

Clayton Brewer 
Diane Sortini 



Gayle Franks 
Carl D. Fulp 
Gerald W. Sanders 



For Petitioner: 



Michelle Parker 



Frederick J. Thompson 



Petitioner 

Employee Relations Manager, 
Division of Human Resources, North 
Carolina State University 
Superintendent, Automotive Services 
Section, Physical Plant Division, 
North Carolina State University 
Assistant Director for Engineering, 
Physical Plant Division, North 
Carolina State University 
Mechanic Supervisor, Automotive 
Services Section, Physical Plant 
Division, North Carolina State 
University 



Industrial Hygienist, North 
Carolina Department of Labor 
Management Analyst, Quality 



i 



306 



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CONTESTED CASE DECISIONS 



Management Division, EPA; at times 

relevant to this case Supervisor of 

Plant Operation, Clevite Seals 

Company 
Kathy Bass - Secretary, Physical Plant Division, 

North Carolina State University 
Johnny E. Atkinson - Labor Crew Leader, Physical Plant 

Division, North Carolina State 

University 
Gerald Hines - Equipment Operator, Physical Plant 

Division, North Carolina State 

University 

EXHIBITS 

Exhibits listing has been omitted from this publication. It can be obtained by contacting this office. 

BURDEN OF PROOF 

The burden of proof in this case is on North Carolina State University. State must show by the 
greater weight of the substantial evidence that it had just cause to terminate Brewer's employment. 

OFFICIAL NOTICE 

Official notice is taken of Chapter 126 of the North Carolina General Statutes and Title 25 of the 
North Carolina Administrative Code. 



facts : 



Based on a preponderance of the substantial evidence, the undersigned finds the following to be the 



FINDINGS OF FACT 



1. Brewer was employed at State in the Physical Plant Division from April 1988 until May 24, 1991. 
Brewer was dismissed from his employment on May 24, 1991. At the time of his dismissal, Brewer 
was a permanent State employee subject to the Personnel Act (Chapter 126 of the General Statutes). 

2. On May 24, 1991, State dismissed Brewer for improper personal conduct. Specifically, Brewer was 
dismissed for three falsifications: 

a. State charged Brewer with falsifying his application by stating that he left a position he held 
earlier at State as a housekeeper for a better job when, in fact, he was separated for failure 
to report to work. 

b. State charged Brewer with falsifying his application by stating he had left his job at Imperial 
Clevite for family reasons when actually Brewer was fired because of excessive absences. 

c. State stated that Brewer "... also indicated on [his] application that [he] had not been 
dismissed from any job during the past twelve months (from the date of your application)." 
State failed to set out with any specificity in its letter of May 24, 1991 terminating Brewer's 
employment any falsification. 

3. The letter dismissing Brewer from employment is dated May 24, 1991 and signed by Gayle H. 
Franks, Interim Superintendent, Automotive Services. 

4. Brewer contends that State fired him because the day before he was fired he filed a complaint with 



8:3 NORTH CAROLINA REGISTER May 3, 1993 307 



CONTESTED CASE DECISIONS 



OSHA regarding State's violations of laws regarding the handling of asbestos and biohazardous 
materials. 

5. In January' 1988, Brewer was working as a temporary employee at State in "Heavy Equipment." 
"Heavy Equipment" is a section within the Physical Plant Division. On January 29, 1988, his 
supervisor, Gerald Sanders, asked Brewer to fill out an application for a full time job within the 
Physical Plant Division. The two were on an half-hour break. Sanders helped Brewer fill out the 
application. As a result of completing the application. Brewer was hired as a Machine Operator I in 
the Physical Plant Division. Heavy Equipment Section. His supervisor was Gerald Sanders. 

6. Brewer stated on his application that he had worked at State as a "Housekeeper" from August 1987 
until February 1988 at $4.50 (an hour). Brewer listed his "Reason for Leaving" that job as "Better 
Job." In fact. Brewer had temporary employment as a Housekeeper Assistant at State from August 
27, 1986 to March 6, 1987 performing maintenance and housekeeping work. 

7. State has not alleged at any point in this contested case that the mis-statement of the dates of Brewer's 
temporary employment is a falsification. Instead, State alleges that the falsification that is material 
is Brewer's stated reason for leaving the temporary employment. 

8. No witnesses testified, other than Brewer, who know the circumstances of why Brewer left State as 
a temporary employee in March 1987. On March 16. 1987. the Physical Plant Division completed 
a "Notice of Separation" form which shows that Brewer was terminated from his job as a 
Housekeeping Assistant #50 on March 6. 1987. The form has "X" marks next to the words "5 Day" 
and "Did Not Report." The reason given for the separation from employment is "Has failed to 

report. (Unknown)." The form contains the words "Recommended for reemployment: Yes, 

No." The word "No" is marked with an "X" and the words "Unsatisfactory' Attendance" are 

typed beside the word "No." 

The Notice of Separation has several categories in addition to "5 Day" to explain the reason 
why the employee is being separated from employment. Among them is the word "Dismissed." That 
word is not checked on the Notice of Separation. 

9. The Notice of Separation has been in the Physical Plant's files since March 16. 1987. 

10. On March 17. 1987. State completed a "SPA Personnel Action" form showing that Brewer was 
separated from employment effective March 6, 1987. The reason stated for the separation is 
"Unknown (Has Failed To Report To Work)." 

11. State did not issue a letter to Brewer in 1987 terminating his employment for either personal 
misconduct or job performance and informing him of appeal rights. State did not terminate Brewer 
in 1987 for reasons relating to job performance or personal conduct. 

12. Both the SPA Personnel Action form and the Notice of Separation were in Brewer's personnel file 
when Gayle Franks pulled the file at 1:00 p.m. on May 22. 1991. 

13. On April 13, 1987, Brewer began work as a janitor at Imperial Clevite Seals Company in Morrisville. 
Brewer was paid $5.97 per hour. 

14. In late June 1987. Brewer told his supervisor, Fred Thompson, that he needed to go to Illinois to take 
care of some family problems. Brewer's 15-year old son had been jailed and Brewer wanted to be 
present when he made an appearance in court. Brewer was a probationary employee at Clevite. As 
a result, four infractions would result in his job being terminated automatically. Brewer had three 
infractions. 

Brewer explained his situation to Thompson and the general manager. Robert Gens. Clevite had hired 



308 8:3 NORTH CAROLINA REGISTER May 3, 1993 



CONTESTED CASE DECISIONS 



and fired several janitors in a matter of four to five months and did not want to lose Brewer because 
he was one of the better employees they had had. 

Thompson and Gens granted Brewer a three-day leave of absence. That, combined with the weekend, 
gave Brewer five days to take care of his business in Illinois. Thompson told Brewer that if he was 
not back after the leave of absence, that Clevite would fire him, and encouraged Brewer to give him 
a verbal resignation in case he was unable to return in five days. Thompson explained that if the 
resignation became effective, and he were subsequently contacted as a reference, it would not be 
stated that Brewer was terminated, but instead, resigned. 

Brewer left North Carolina on Wednesday night and drove to Illinois arriving Thursday evening. On 
Friday, it was apparent to Brewer he could not be back at Clevite by Monday, so he telephoned 
Thompson and resigned. 

15. On July 2, 1987, Clevite terminated Brewer's employment effective July 1, 1987. 

16. When Brewer applied for the job at State which is at issue in this case. State verified his former 
employment. By April 1988, an "Employment Verification Questionnaire" completed by Robert Gens 
was in Brewer's personnel file. In response to a question asking the employee's reason for leaving, 
Gens wrote: 

"Clayton was terminated for excessive absenteeism during his probationary 
period. The quality of his work was excellent ! I personally met with him 
regarding his problem. He was in violation of our no fault attendance 
policy. I wish him the best and took a personal interest in him. We gave 
him a second chance and he lost it.... I hope he has his personal problems 
corrected. He was a hard worker ." 

State took no action in April 1988, or at any time before May 24, 1991 , to fire Brewer for disclosing 
false or misleading information on his job application. 

18. Brewer began working for Norrell Temporary Services in October 1987. Brewer came to work at 
State in November 1988 as a temporary employee in the Physical Plant Division working as a laborer. 
Brewer did not state a reason for leaving Norrell. No substantial evidence was introduced to show 
that Brewer was terminated from Norrell. 

19. On Wednesday, May 22, 1991 , Brewer, along with Gerald Hines and Johnny Atkinson, were directed 
to transport floor tiles that had been removed from a building at State to the landfill. The tiles had 
a backing containing asbestos. Many of the tiles were broken, thus rendering the asbestos friable. 
The tiles had been placed in bags containing a warning that asbestos containing materials were in the 
bags, but the broken tiles had cut several of the bags. The three laborers were directed by their 
supervisor, Gerald Sanders, to re-bag the damaged bags. 

20. Between 8:00 a.m. and 8:30 a.m., the three laborers re-bagged the asbestos containing floor tiles. 
In the process, they became covered with dust. At approximately 8:30 a.m., the three stopped work 
and drove to the Physical Plant office to complain to their supervisor, Gerald Sanders. Sanders was 
Mechanic Supervisor, Automotive Services Section of the Physical Plant. 

Atkinson was the crew leader. Atkinson told Sanders the men were refusing to do any more work. 
Sanders telephoned his supervisor, Gayle Franks, and told her his men were refusing to bag and move 
the floor tiles. Franks was Superintendent of the Automotive Services Section. The two hung up and 
Sanders told the men to wait. Brewer told Sanders that the material they were moving was asbestos 
and that he did not want Sanders to get in trouble, but that he was going to report whomever was in 
charge. Brewer told Sanders he had already called OSHA. 



8:3 NORTH CAROLINA REGISTER May 3, 1993 309 



CONTESTED CASE DECISIONS 



Subsequently, Franks telephoned Sanders. Franks told Sanders there was no danger, but that if the 
men felt they needed some protection, then Sanders was to provide the protection. Sanders told the 
three moving the floor tiles was not dangerous. Sanders directed the laborers to go to Central Stores 
to purchase paper jumpsuits and a box of masks. The masks Sanders told the laborers to buy are the 
kind commonly used to protect people from inhaling dust while performing yard or housework. The 
Administrative Law Judge takes official notice that the masks are not the respirators approved in the 
Code of Federal Regulations and the North Carolina Administrative Code for use in the removal of 
friable asbestos containing material. 

Brewer and the other two drove to Central Stores and purchased the suits and masks. 

Sanders had no training to determine whether the floor tiles had become dangerous and did not know 
the difference between friable and non-friable asbestos until the hearing of this case. 

21. Sometime between Noon and 12:30 p.m.. on May 22, 1991, Brewer telephoned OSHA and spoke 
with someone named "Greg." 

22. Between 12:30 p.m. and 1:00 p.m.. Brewer, Atkinson and Hines transported biohazardous material 
to the State veterinary school for autoclaving and disposal. While at the vet school, the three 
complained to a Life Safety Services employee. After the conversation. Brewer and Hines told 
Atkinson they were going to see someone in personnel. 

23. On May 23, 1991, at approximately 1:00 p.m., Franks looked at Brewer's personnel file. Franks 
testified she reviewed the file with Carl Fulp, the Director of the Physical Plant, because another 
employee who was involved in a disciplinary conference had told her at Noon that Brewer had left 
the physical plant earlier for another job. 

24. Diane Sortini is the Employee Relations Manager of the Division of Human Resources at State. At 
approximately 3:00 p.m.. on Wednesday, May 22, 1991, Brewer, Atkinson and Hines came to her 
office to complain about moving the hazardous material. Sortini testified the three men refused to 
give their names and stated they wished to remain anonymous. Brewer did most of the talking for 
the group. The three told Sortini that their supervisor was Ms. Franks. 

25. Sortini took notes of her meeting with Brewer, Hines and Atkinson. The notes indicate that she met 
with them on May 22, 1991. The notes contain the statement, "Note: One of the men, Clayton 
Brewer, told me that he had called OSHA and the Labor Department to report their unsafe working 
conditions." Brewer made the statement to Sortini as he was leaving her office. 

26. Within an hour of her meeting with Brewer, Sortini spoke by telephone with Public Safety at State. 
She was told that a Life Safety Services employee, not a Public Safety Services employee had been 
approached by three physical plant employees. 

27. At 4:15 p.m. on May 22, 1991, Ms. Franks and Mr. Fulp returned to the offices of the Physical Plant 
after having visited Capital Hydraulics. Gerald Sanders telephoned Franks and told her that the 
Physical Plant had "trouble." At that same time, Diane Sortini was on the telephone with Carl Fulp 
reporting that three men from the physical plant had come to her office very concerned about their 
working conditions transporting material. Sortini testified on direct examination that she did not 
identify the individuals. Sortini's notes, produced after her direct testimony, indicate she knew 
Brewer's name. Sortini told Fulp that Brewer had told her there would be an OSHA investigation. 

28. Notes made by Sortini and Franks were produced after their direct testimony upon motion by counsel 
for Brewer and order of the undersigned. Significant portions were read into evidence. In a note 
dated "Wednesday, May 22, 1991, approx. 4:15 p.m.," Franks writes Sortini telephoned Fulp and 
told him that three men who refused to identify themselves showed up in her office and told her they 
had been sent to her by Public Safety. Franks' notes state. "One man did almost all of the talking. 



310 8:3 NORTH CAROLINA REGISTER May 3, 1993 



CONTESTED CASE DECISIONS 



a tall very skinny black man (Clayton Brewer).... [0]ne man indicated that he didn't want to be there 
(identified as Johnny Atkinson) — Clayton told her that there would be an investigation (OSHA)." 

Both Sortini's notes and Franks' notes are typewritten and are editions of handwritten notes made 
contemporaneously with the meetings described. 

The notes, and the testimony of Sortini and Franks taken together show that Sortini did not know 
Brewer when he came to see her, but that by 4:15 p.m. on May 22, 1991, Sortini, Franks and Fulp 
all knew that Brewer claimed to have filed a complaint with OSHA. 

29. Sometime after May 24, 1991, Hines received a written reprimand for going to talk with Sortini. 

30. On May 23, 1991, Franks and Sanders conducted a pre-dismissal conference with Brewer at 2:00 
p.m. and suspended him. 

31. On May 23, 1991, at 3:00 p.m., Brewer lodged a complaint with OSHA. Greg McGuire received 
the complaint. 

32. On Friday, May 24, 1991, at 8:00 a.m., Franks held another conference with Brewer and gave him 
the letter introduced as Exhibit R5. Brewer was fired at 8:00 a.m. for the reasons set forth in Exhibit 
R5. 

33. A health compliance officer with OSHA began an investigation on the afternoon of May 24, 1991 . 

As a result of the investigation, the North Carolina Department of Labor (OSHA) issued at least seven 
citations to State. The citations range in nature from "willful and serious," to "non-serious." 

The Department of Labor found that "... employees of the physical plant were removing asbestos 
containing floor tiles without having had any initial personal monitoring to determine exposures. 
[N]one of the employees had any training in asbestos or respiratory protection." 

If the citations had been issued in the private sector, the penalties assessed by the Department would 
have been Fifty Two Thousand ($52,000.00) Dollars. 

34. In 1987, it was the policy of State to consider the separation from employment of a person who failed 
to report to work as a termination for failure to report to work. State did not make Brewer aware 
of this policy in 1987. There is no evidence that when State separated Brewer from employment in 
1987, it notified him of his termination and informed Brewer of his due process appeal rights. 

The Administrative Law Judge takes official notice of 25 NCAC ID .0518, effective November 1, 
1989. The rule provides that an employee who is absent for three consecutive scheduled work days 
without making a satisfactory report is deemed to have voluntarily resigned. 

35. In 1987, it was the policy of the Physical Plant at State not to rehire anyone who had been terminated. 
The policy is an internal one and is not a duly promulgated administrative rule. 

36. There is no evidence that either policy described in Finding 34 and 35 above was ever communicated 
to Brewer. 

Based on the foregoing, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . Brewer did not knowingly and willfully disclose false or misleading information or conceal prior 

employment history or other requested information on his application for State employment in any 



8:3 NORTH CAROLINA REGISTER May 3, 1993 311 



CONTESTED CASE DECISIONS 



of the three ways alleged by State in the letter terminating his employment. 

2. Because State did verify within 90 days of Brewer's employment the accuracy of his statements 
regarding prior employment at State and Imperial Clevite, State is estopped as a matter of law from 
taking action three years later to terminate Brewer on the grounds that he falsified information relating 
to those two employments. 

3. State was motivated to terminate Brewer's employment for reasons other than those articulated, which 
reasons do not constitute "just cause" and are improper. 

4. State terminated Brewer's employment without just cause. 
Based on the foregoing, the undersigned makes the following: 

RECOMMENDED DECISION 

The Personnel Commission should reinstate Brewer to his position, award him back pay and full 
benefits, and award him attorney fees in a reasonable amount. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina State 
Personnel Commission. 

This the 2nd day of April, 1993. 



Thomas R. West 
Administrative Law Judge 



312 8:3 NORTH CAROLINA REGISTER May 3, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF CUMBERLAND 



IN THE OFFICE OF . 
ADMINISTRATTVE HEARINGS 
92 DHR 1192 



BARBARA JONES, 
Petitioner, 



N.C. DEPARTMENT OF HUMAN RESOURCES, 
DD7ISION OF FACILITY SERVICES, 
LICENSURE SECTION, 
Respondent. 



RECOMMEND DECISION 



The above-captioned hearing was heard before Administrative Law Judge Dolores O. Nesnow, on 
March 12, 1993, in Fayetteville, North Carolina. 



For Petitioner: 



For Respondent: 



1. 



Aide Registry? 



APPEARANCES 

Barbara Jones 

426 Palmerland Drive 

Hope Mills, North Carolina 28348 

Petitioner 

June Ferrell 

Associate Attorney General 

North Carolina Department of Justice 

P. O. Box 629 

Raleigh, North Carolina 27602-0629 

Attorney for Respondent 

ISSUES 



Did the Respondent err in substantiating neglect against Petitioner? 

Did the Respondent err in entering the substantiation of neglect against Petitioner in the Nurse 

STATUTE AND RULE IN ISSUE 

N.C. Gen. Stat. 131E-111 

N.C. Admin. Code, tit. 10, r. 3H .0513 

N.C. Gen. Stat. 108-101(m) 

WITNESSES 



For Petitioner: 
For Respondent: 



Barbara Jones, Petitioner 

Barbara Jones, Petitioner 

Valerie Raeford-Bard, DHR/DFS Complaints Investigator 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



313 



CONTESTED CASE DECISIONS 



ALJ Witness: Jayne Morrow Bunn, DHR/DFS Abuse and Neglect Supervisor 

EXHIBITS 

Exhibits listing has been omitted from this publication. It can be obtained by contacting this office. 
Based upon the foregoing, the undersigned makes the following: 

FINDINGS OF FACT 

1. On February 2. 1992, Petitioner was employed at the Highland House Nursing Home 
(Highland House) in Fayetteville, North Carolina, as a nurses aide. 

2. Petitioner was employed at Highland House for approximately 3 to 4 months. 

3. Petitioner was at that time a certified nurses aide for approximately 2 years. 

4. On February 2, 1992, at approximately 2:00 p.m.. Petitioner was making her final rounds 
before the end of her shift. Petitioner checked on patient A.M. 

5. Patient A.M. is an elderly woman who suffers from Alzheimer's Disease. 

6. Patient A.M. is not completely ambulatory and often requires support restraints to keep her 
in bed or to keep her upright when she is placed in a wheelchair. 

7. When Petitioner entered patient A.M."s room, she observed that the patient had had a bowel 
movement in the bed. 

8. Petitioner helped patient A.M. out of bed, took her to the bathroom and placed her on the 
commode. 

9. Petitioner was not aware whether or not patient A.M. was required to be restrained while she 
was on the commode. 

10. None of the witnesses could recall whether the commode was fitted with the apparatus 
necessary with hooks for a restraint vest. 

11. A visitor who was at the nursing home visiting another patient entered the room and asked 
Petitioner if she would get a sweater for the patient she was visiting. 

12. Petitioner left patient A.M. on the commode and went to get a sweater for the other patient. 

13. When she returned to patient A.M.'s room, and prior to beginning the cleanup of the bed 
linens. Petitioner went into the bathroom to check on the patient. 

14. Petitioner saw the patient on the floor and helped her back to her feet. 

15. While Petitioner was away from the bathroom, she did not hear the patient fall, scream, or 
call out for help. 

16. Petitioner lifted patient A.M. and placed her in a chair in the room while she changed the 
bed linens. 

17. Later, when she placed patient A.M. in the bed. patient A.M. said. "Oh. that hurts." 



314 8:3 NORTH CAROLINA REGISTER May 3, 1993 



CONTESTED CASE DECISIONS 



18. Petitioner knew that she was responsible for the patient's fall and she was afraid that she 
would be blamed for any injury to the patient. Petitioner examined the patient's buttocks area but did not 
observe any damage. 

19. Petitioner did not report the fall to her supervisors at that time. 

20. Shortly after placing the patient back into bed. Petitioner's shift ended and she went home 
for the night. 

21 . In the morning, Petitioner returned to work 15 minutes before the beginning of her 7:00 a.m. 
shift to attend Report. 

22. While Petitioner was at Report, she heard the information that patient A.M. had complained 
of pain during the night. Petitioner decided that she had to notify someone of the incident and she went to 
Registered Nurse Smith, and reported what had happened on the previous day. 

23. Nurse Smith directed Petitioner to see Jean Kiker, the Director of Nursing. Petitioner told 
Ms. Kiker about the fall the previous day. 

24. Petitioner testified that she was trained to report any accidents prior to moving a patient, but 
that she had not reported the incident because she was afraid of being blamed and losing her certification and 
her job. 



25. It was subsequently discovered that patient A.M. had suffered a broken bone in her pelvic 



area. 



26. The patient's chart reflects that on February 3, 1992: 

"8:00 a.m. - Patient noted to have some pain in right hip area - some bruising noted on right 
buttock firm hard golfball size knot noted on right buttock by area of bruising. Patient 
unable to bear weight or tolerate being turned. No noted falls or injuries to area. Call 
placed to FAHEC-awaiting return call." 

27. The chart further reflects that on the same date at 10:15 a.m., Dr. Bussomano returned the 
call and new orders were entered in the chart as follows: 

"M.D. orders - telephone - Tylenol #3 every 4 hours prn pain x 10 days or Tylenol with 
codeine elixir lOccs every 4 hours prn pain x 10 days." 

28. The patient's record also reflects the following: 

"11:15 a.m. NA taking care of patient yesterday came forward and said that she had put 
patient on commode and when she returned patient was on floor. NA panicked and put 
patient back in chair and did not report fall to other nursing staff until this time." 

29. The patient's record further reflects the following: 

"2:05 p.m. ambulance arrives to transport patient to CFVMC for evaluation. Ice remains 
on right buttock Respiration even and unlabored... 10:00 p.m. patient returned to Highland 
via ambulance Reports of fractured pubic right ramsus... noted pain and grimace with 
movement and touch. Orders for rest until patient can sit or stand... Tylenol tablets given for 
pain. Continue to monitor. Dr. called for prescription Tylenol #3 order." 

30. On February 7, 1992, the Director of Nursing reported the incident to the Respondent. 



8:3 NORTH CAROLINA REGISTER May 3, 1993 315 



CONTESTED CASE DECISIONS 



31. Valerie Raeford-Bard (Raeford) of the N. C. DHR/DFS, Licensure Section, was assigned to 
investigate the incident. 

32. Ms. Raeford went to the Highland House Nursing Home and spoke with the Petitioner. 

33. Petitioner reported, "In my heart, I knew 1 needed to tell someone but it just scared me. I 
just started working and it was just this fear. That next morning after Report I told Ms. Smith the supervisor 
what had happened. They were talking about her and I knew what the problem was." 

34. Ms. Raeford's investigation indicates that the physician's orders from February 19, 1992 to 
February 29, 1992 direct that the patient be handled with a vest restraint or geri-chair while sitting or in bed 
without supervision to prevent falling. The orders did not mention restraint on the commode. 

35. Ms. Raeford's investigation indicates that these same orders were listed in January. 

36. Ms. Raeford interviewed Ms. Jones again at approximately the end of March in 1992. 
Petitioner stated that she did not restrain the resident, that she had left the bathroom to get a sweater for a 
visitor, that she went to the hallway for just a few seconds. 

37. Petitioner also reported that she does not remember being told to restrain patient A.M. on 
the commode but only that she had been instructed to keep her eye on her patients all the time. 

38. At the end of March, 1992, Ms. Raeford interviewed the Director of Nursing, Jean Kiker. 
Ms. Kiker reported that both she and the Administrator counseled Petitioner after the incident and decided to 
put her on probation and watch her. 

39. A few days later, Petitioner did not report to work. The Supervisor called Petitioner's house 
and her husband said she would be about 20 minutes late. Three hours later, Petitioner was still a "no show". 
Petitioner did not appear for work the next day. Petitioner did not report to work for three days. Petitioner 
then called in to the Nursing Home and was told that the Director of Nursing had terminated her. 

40. After the investigation was complete, Ms. Raeford discussed it with her supervisors and they 
determined that a substantiation of neglect would be found against Petitioner. 

41 . Ms. Raeford testified that "it was a difficult call, very difficult." 

42. Ms. Raeford testified that she doesn't remember any specific definition of "neglect" but that 
she believed it was "failure to respond as a reasonable person would." 

43. Jayne Bunn, Ms. Raeford's supervisor, was also involved in the decision concerning the 
alleged incident of neglect, as was Jesse Goodman, Section Chief of the Licensure Section, who made the 
ultimate decision. 

44. Ms. Bunn testified that there was a lot of discussion about this incident. She testified that 
she was concerned with the delay in reporting the fall and the patient subsequently going without treatment 
until the next day. 

45. Ms. Bunn testified that she had no hesitation about substantiating neglect. 

46. Ms. Bunn testified that if neglect is entered on the Nurse Aide Registry against Petitioner, 
Petitioner would not be allowed to work in a nursing home again. 

47. N.C. Gen. Stat. 131E-1 1 1(a) provides that, pursuant to 42 USC Section 1395i-3(e) and 42 
USC Section 1396 r(e), the Department shall establish and maintain a registry containing the names of all 
nurse aides working in nursing facilities in North Carolina. The Department shall include in the nurse aide 



316 8:3 NORTH CAROLINA REGISTER May 3, 1993 



CONTESTED CASE DECISIONS 



registry any findings by the Department of neglect of a resident in a nursing facility or abuse of a resident in 
a nursing facility or misappropriation of property. 

48. Department is not defined in the Nursing Home Licensure Act, Article b, but is defined in 
Article 1, General Provisions, as the Department of Human Resources. 

49. N.C. Gen. Stat. 131 E- 111 (b) further provides that a nurse aide who wishes to contest a 
finding of neglect, abuse or misappropriation is entitled to an administrative hearing as provided by the 
Administrative Procedure Act (APA). 

50. That Statute further provides that the Commission shall adopt, amend and repeal all rules 
necessary for the implementation of this Section. 

51. N.C. Admin. Code, tit. 10, r. 3H .0513 provides that a licensed facility shall provide 
employees with a planned orientation and continuing education program emphasizing patient or resident 
assessment and other patient or resident care policies and procedures, patients rights and staff performance 
expectations. That rule further states that each employee shall have specific on the job training as necessary 
for the employee to properly to perform his individual job assignment. 

52. N.C. Admin. Code, tit. 10, r. 3H .0315(b) provides that in matters of patient abuse, neglect 
or misappropriation, the definitions shall have the meanings as contained in North Carolina Protection of the 
Abused, Neglected or Exploited, Disabled Adult Act, G.S. 108A-99 et seq. 

53. N.C. Gen. Stat., Section 108A-101(m) provides the following: 

"The word "neglect" refers to a disabled adult who is either living alone and not able 
to provide for himself the services which are necessary to maintain his mental or physical 
health or is not receiving services from his caretaker. A person is not receiving services 
from his caretaker if, among other things and not by way of limitation, he is a resident of one 
of the state-owned hospitals for the mentally ill, centers for the mentally retarded or North 
Carolina Special Care Center he is, in the opinion of the professional staff of that hospital 
or center mentally incompetent to give his consent to medical treatment, he has no legal 
guardian appointed pursuant to Chapter 35A, or guardian as defined in G.S. 122C-3(15), and 
he needs medical treatment." 

Based upon the foregoing Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . Petitioner's neglect was not substantiated for failure to employ a restraint vest for patient 
A.M. while she was on the commode. The neglect was substantiated, rather, for failing to report that patient 
A.M. had fallen. 

Thus, regardless of the doctor's orders which did not specifically require a restraint vest on 
the commode, and regardless of the provisions of 10 NCAC 3H .0513 requiring on the job training as 
necessary, the Petitioner testified that she did know that the fall, having occurred, should have been reported 
immediately. 

2. In order to review an incident such as this it is necessary that one review the definition of 
neglect to see if the substantiation was appropriately found. The definition of neglect in Article 6 part A, the 
Nursing Home Licensure Act, is the definition which appears in N.C. Gen. Stat. 108A-101(m). 

In breaking that definition down into its elements, it appears that the following provisions 
must be met: 



8:3 NORTH CAROLINA REGISTER May 3, 1993 317 



CONTESTED CASE DECISIONS 



a. The patient is a disabled adult; 

b. The patient is a resident of a nursing home; 

c. The patient is incompetent in the opinion of the professional staff; 

d. The patient has no legal guardian; 

e. The patient needs medical treatment; 

f. The patient is not receiving services from the caretaker. 

Given, arguendo, that the first five of these elements can be met by the evidence presented, 
there remains the final element. That element is the only one which might be designated as an attempt to 
define "neglect"; that the patient was not receiving services from the caretaker. 

It is essential that a definition be clear and unambiguous and that, upon review, it may be 
determined on an objective basis whether there was neglect as opposed to accident, mistake, unavoidable 
incident, or error in judgment amounting to something less than neglect. 

While a clear definition of neglect might well have included the failure to report a patient's 
fall immediately, the definition of neglect currently adopted provides no such clear definition. 

In applying the definition of neglect as it is currently adopted, the vagueness of the definition 
precludes a clear determination that a substantiation of neglect was valid and accurate in this case. 

3. Respondent's rule N.C. Admin. Code, tit. 10, r. 3H .0315(b) which purports to define, in 
pertinent part, "neglect" is found to be unclear and ambiguous to persons it is intended to direct, guide or 
assist and. therefore, pursuant to the authority found in G.S. 150B-33(9), it is declared void as applied in this 
contested case. 

4. The Respondent erred in substantiating neglect against Petitioner. 

5. The Respondent, therefore, erred in reporting that substantiation to the Nurse Aide Registry. 

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the 
following: 

RECOMMENDED DECISION 

That the Respondent withdraw the substantiation of neglect against the Petitioner and that the 
Respondent not enter any notification of substantiation of neglect against Petitioner in the Nurse Aide Registry. 

ORDER 

Rule 10 NCAC 3H .0315(b) is declared void as applied in this contested case pursuant to G.S. 150B- 

33(a). 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 



318 8:3 NORTH CAROLINA REGISTER May 3, 1993 



( 



CONTESTED CASE DECISIONS 



The agency that will make the final decision in this contested case is the North Carolina Department 
of Human Resources. 



This the 2nd day of April, 1993. 



Dolores O. Nesnow 
Administrative Law Judge 



8:3 NORTH CAROLINA REGISTER May 3, 1993 319 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



IN THE OFFICE OF 

ADMTNISTRATTVE HEARINGS 

92 DOA 1662 



MCLAURIN PARKING COMPANY, 

Petitioner, 



N.C. DEPARTMENT OF ADMINISTRATION, 
DIVISION OF PURCHASE AND CONTRACT, 
Respondent, 

and 

CENTRAL PARKING SYSTEM, INC. 
Intervenor-Respondent. 



RECOMMENDED DECISION 



This matter was heard by Fred Gilbert Morrison Jr., Senior Administrative Law Judge, Office of 
Administrative Hearings, on February 3, 1993, in Raleigh, North Carolina. Following the hearing, the parties 
submitted proposed findings of fact and conclusions of law. The record closed on March 2, 1993. 

APPEARANCES 

Petitioner was represented by attorney George G. Hearn of Raleigh. Assistant Attorney General D. 
David Steinbock appeared for Respondent Department of Administration. The Respondent-Intervenor was 
represented by attorney Donald R. Teeter of Raleigh. 

ISSUE 

Whether the Respondent Department of Administration erred or acted arbitrarily and capriciously in 
not allowing the award to Petitioner of a parking management services contract at the University of North 
Carolina at Chapel Hill. 

OPINION OF THE ADMINISTRATTVE LAW JUDGE 

Based on competent evidence admitted at the hearing and later submitted by the parties, the 
Administrative Law Judge makes the following: 

FTNDEVGS OF FACT 

1. McLaurin Parking Company is a corporation headquartered in Raleigh, NC whose primary business 
is vehicular parking and traffic transportation management. 

2. On or about July 15. 1992, the University of North Carolina at Chapel Hill (hereafter "UNC") issued 
a request for proposal (hereafter "RFP") seeking proposals leading to a contract for parking 
management services. UNC submitted a draft of the RFP to the Division of Purchase and Contract 
(hereafter "Division") of the N.C. Department of Administration prior to its being issued for review 
and approval. 

3. The contract period for the parking management services was to be September 1, 1992, through 
August 31, 1993. 



320 



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CONTESTED CASE DECISIONS 



4. At the time the RFP was issued, McLaurin was rendering services to UNC under a then-existing 
contract for parking management, and had provided similar services to UNC in the general nature of 
parking and traffic management consultation for approximately six years. During this time period, 
McLaurin successfully managed parking at 332 UNC events at a cost of $902,185.00. 

5. The RFP contained a section entitled "III. Scope of Services Required", and paragraph D within that 
section provided: "Number of Events. There will be approximately six (6) football games, fourteen 
(14) basketball games, and twenty-five (25) concerts and other events (i.e. Commencement, 
registration, etc.) each year." McLaurin had satisfactorily managed many such events at UNC during 
the past six years. 

6. Proposals in response to the RFP were submitted by only two firms, McLaurin and Central. 

7. Paragraph VII, entitled "Evaluation of Proposals," provided in part that designated UNC Department 
of Transportation and Material Support staff members would evaluate the proposals received and 
would consider a listed number of seven (7) criteria in selecting a parking management firm. 

8. Under paragraph IX, "Required Proposal Content", the RFP required in part: 

"A. Each offeror must demonstrate in their proposal the ability to perform in accordance with the 
requirements contained herein. Therefore, in addition to information required in other parts 

of this RFP, offeror shall furnish the following information: 

* * * 

7. Cost for services in a lump sum figure with a breakdown of, but not limited to, such items 

as management fee, supervisory staff, personnel, operation, etc. The University is willing 
to consider alternative cost structures. For example, a percentage of revenues, provided said 
alternative cost structure does not yield a greater net cost to the University." 

Central submitted a figure designated lump sum as part of its financial proposal, but also qualified 
that by stating it would negotiate other events. McLaurin submitted as its financial proposal an 
alternative cost structure stating fees expressed on a per event attendants requested basis "in an effort 
to pinpoint costs for each event." 

10. Mr. LaBron Reid was UNC's special events parking administrator who developed the RFP and who 
initially evaluated the proposals from McLaurin and Central. 

11. By letter dated August 13, 1992, to UNC Assistant Purchasing Director John Boone, Mr. Reid 
recommended that the UNC parking management services contract be awarded to McLaurin. Mr. 
Reid stated his reasons in this letter, including that he developed a model in order to make a 
comparison of the different financial proposals submitted by Central and McLaurin. Using this 
model, Mr. Reid determined that the difference between the financial bids was "negligible". He 
concluded that McLaurin through its technical proposal and references demonstrated greater 
experience in the type of operations described in the RFP and other factors that indicated that 
McLaurin would be best suited for the needs of the Department of Transportation and Parking 
Services. 

12. John A. Leaston is and was in 1992 an employee of the Division of Purchase and Contract. John 
Boone transmitted to Mr. Leaston on or about August 17 a copy of Mr. Reid's letter of August 13, 
1992. 

13. LaBron Reid concluded that the proposal by McLaurin, including the length and detail of the technical 
proposal, made McLaurin's proposal more advantageous to UNC than Central's proposal. 

14. The Division, through the decision and review of John A. Leaston, rejected Mr. Reid's recommenda- 
tion in his letter of August 13, 1992. 



8:3 NORTH CAROLINA REGISTER May 3, 1993 321 



CONTESTED CASE DECISIONS 



15. LaBron Reid and John Boone jointly placed a telephone call from Mr. Boone's office to Mr. Leaston 
to discuss the reasons why the recommendation of Mr. Reid had been rejected by Mr. Leaston. This 
telephone call was placed after Mr. Reid's letter of August 13 was transmitted to Mr. Leaston. 

16. In that telephone conversation, Mr. Leaston stated to Mr. Reid and Boone that his (Leaston's) 
evaluation was that based on the RFP, Central was the lowest bidder and from that point the award 
would have to be to the lowest bidder. Mr. Leaston said nothing in that conversation about 
McLaurin not submitting a lump sum price in its proposal. 



17. LaBron Reid prepared a second letter in draft form dated August 25 but which was prepared August 
23 or August 24 and transmitted by facsimile to Mr. Leaston. The draft letter contained additional 
sentences and changes by Mr. Gerald Elefante. head of the UNC Purchasing and Material Support 
Department. 

18. In Mr. Reid's letter of August 25, as edited, he again recommended that McLaurin be awarded the 
UNC Parking Management Contract, but in this letter he expanded his evaluation and reasons. Mr. 
Reid's letter noted McLaurin's fifteen years of experience with event operations and seven years of 
experience with comparable events as well as the fact that McLaurin's proposal gave detailed 
information on personnel who would be assigned as event managers, including their experience with 
event operations. 

19. In addition, Mr. Reid's letter of August 25, 1992. stated that actual activity in terms of parking events 
can and often does vary widely, and as such, this renders a direct dollar-for-dollar comparison 
inadequate without a risk evaluation. Reid noted that Central's proposal did not state how pricing 
additional events would be calculated. McLaurin's financial proposal provided an exact fee schedule. 
Reid concluded, to show how the pricing for each event would be calculated, even beyond those listed 
in the RFP. 

20. Mr. Reid set forth in his August 25 letter that the prices listed in the proposals by Central and 
McLaurin were not "fixed" prices in that, should UNC deviate from the proposed scenario, as UNC 
routinely has done each year, the actual cost to the University under the contract would be actual 
allowable expenses. Reid concluded a dollar-to-dollar comparison, without risk evaluation and other 
source selection factors, would be an incorrect method of choosing the lowest bidder, cost and other 
factors considered. 

21 . In addition. Reid found the McLaurin proposal to be superior from a technical point of view in terms 
of stating how the services would be provided, as compared to Central's and stated that Central's 
proposal was "simply an iteration of the RFP requirements". McLaurin's proposal, Reid noted, 
expressed a complete understanding of the services required under the contract as described in the 
RFP and an outstanding, efficient plan to provide those services." Reid again recommended that 
McLaurin receive the contract award as the lowest bidder, price and other factors considered. 

22. The Division rejected Mr. Reid's recommendation and the Division directed that the contract be 
awarded to Central. Mr. Leaston did not consider the reasons given by Reid for awarding the 
contract to McLaurin. 

23. LaBron Reid first became aware that the Division maintained that McLaurin's financial proposal was 
allegedly deficient because it did not contain a lump sum when Mr. Reid received information from 
McLaurin's petition prior to his being subpoenaed to the hearing February 3, 1993. Because the 
Division would not accept Mr. Reid's recommendation to award the contract to McLaurin, he wrote 
John Boone by letter dated August 28. 1992, that UNC Department of Transportation and Parking 
would accept Central's proposal. 

24. John Leaston requested additional information as to why UNC was recommending McLaurin. and this 



322 8:3 NORTH CAROLINA REGISTER May 3, 1993 



CONTESTED CASE DECISIONS 



request was made to John Boone, who faxed additional information to Mr. Leaston prepared by Mr. 
Reid. Leaston did not consider this information in making his decision. 

25. In the afternoon of August 31, 1992, John Leaston requested additional financial information 
regarding the McLaurin and Central proposals. Mr. Reid presented this information in a 
memorandum dated September I, 1992, from him to Mr. Boone. Leaston did not consider this 
information. 

26. LaBron Reid's financial evaluation of the proposals in his memorandum of September 1, 1992, 
"averaged the man-hours for the actual concerts/events performed by McLaurin and compared them 
to the averages for the events that I projected to equal the 25 events mentioned in the RFP. " Mr. 
Reid's results indicated a total financial figure for McLaurin to be $175,071 .00, which was $5,067.00 
less than the McLaurin figure model attached to his letter to Mr. Boone of August 13, 1992. 

27. John Leaston informed John Boone two or three days following transmittal of the August 13 letter 
from LaBron Reid that UNC would have to accept Central because it was the low bid and McLaurin 
was not the low bid. Mr. Leaston indicated to Mr. Boone that the failure of McLaurin to put a figure 
(lump sum) in its proposal presented a problem, too. 

28. The Division makes the final decision on UNC's award of contracts regardless of whether UNC 
recommends that a particular proponent receive the contract. 

29. On August 31, 1992, Stephen B. McLaurin and Kristy M. Eubanks, officers of McLaurin, went to 
the Division to obtain a copy of the file relating to the UNC transportation contract. While there, 
they were taken to John Leaston's office and introduced to him. They did not previously know him. 

30. In conversations in the morning of August 31, 1992, John Leaston told Stephen B. McLaurin and 
Kristy M. Eubanks that the UNC contract had not officially been made and showed it to them on his 
desk, although he did state that he had made his decision. Mr. Leaston stated that Central was going 
to receive the contract because they were the lower bidder, and cited to the McLaurin officers that 
the difference in bids was less than $200.00. Mr. Leaston did not mention that McLaurin's proposal 
was rejected on the basis of not containing a lump sum. When they told him that their proposal was 
superior, Leaston stated that the State was not looking for a "Cadillac." 

31. Mary N. Clayton, transportation programs manager for Charlotte, NC Uptown Development, is an 
expert in the area of transportation and special events planning. 

32. Ms. Clayton reviewed the RFP and proposals submitted. In the opinion of Ms. Clayton, the RFP did 
not require a proposer to submit a lump sum. She based that opinion on the language in the RFP, 
Page 11, Item VII that "the University is willing to consider alternative cost structures." 

33. Ms. Clayton previously was employed at UNC from 1985 until 1988 as Director of Transportation 
and Parking Services and was employed from 1981 until 1983 in the North Carolina Department of 
Transportation. Ms. Clayton had prepared an RFP while employed at UNC. 

34. From her review of the RFP and the technical and financial proposals submitted by McLaurin and 
Central, Ms. Clayton's opinion at the hearing was that the McLaurin technical proposal is superior 
to the technical proposal of Central. The basis for her opinion was that the McLaurin proposal was 
able to define areas of placement of people, equipment, how they would be applied and very specific 
details related to their activity. The proposal referenced specific events, including what McLaurin 
would do for football, basketball and concerts. By contrast, Central's proposal would say "we intend 
to, we are willing to, we would." She initially hired McLaurin at UNC. 

In the opinion of Ms. Clayton from a review of the financial proposals submitted by McLaurin and 
Central, the alternative cost structure option allows the most flexibility for UNC because it would be 



8:3 NORTH CAROLINA REGISTER May 3, 1993 323 



CONTESTED CASE DECISIONS 



very difficult to apply a lump sum to the operation of special events. In her opinion, the McLaurin 
proposal was the lower cost proposal. 

36. Ms. Clayton performed her own financial analysis of the financial proposals submitted by Central and 
McLaurin. Her analysis showed that the McLaurin proposal was lower than the Central proposal. 
with McLaurin's proposal being $172,656.00 and Central's being $179,968.00. 

37. Separate from her own analysis. Ms. Clayton stated at the hearing her belief that LaBron Reid's 
analysis of both proposals, as set forth in his letters and memorandum to John Boone, was reasonable. 

38. McLaurin's proposal was superior to that of Central's, in Ms. Clayton's opinion, with respect to 
substantial conformity with the specifications of the RFP. 

39. In Ms. Clayton's opinion, the RFP did not require the submission of a lump sum by a proponent as 
a precondition of alternative pricing. 

40. John Leaston in his capacity as Assistant Purchasing Administrator for the Division, reviewed the 
RFP and the proposals submitted in response thereto. From his evaluation, he concluded that the 
contract should be awarded to Central "because they were in substantial compliance with the 
requirements" of the RFP. 

41 . Mr. Leaston stated that McLaurin was not in compliance with the RFP because McLaurin's proposal 
did not contain a lump sum fee. 

42. Based on a request from then Secretary of Administration James Lofton, the award of the contract 
was held on August 3 1 or September 1 pending further review by his staff. 

43. John Leaston did not consider the risk evaluation factors contained in the letters from LaBron Reid 
to John Boone, which were transmitted to Mr. Leaston. because in Mr. Leaston's view, the McLaurin 
proposal was unacceptable because it did not submit a lump sum. 

44. John Leaston did not make a matter of record the fact that Central was the only single acceptable bid 
received as required by Respondent's rules. 

45. The unwritten policy of the Division, as Mr. Leaston understood and applied it. was not to consider 
alternative price proposals when the RFP called for a base bid unless a base bid was also given. 

46. Mr. Leaston testified at the hearing that the award process had not been completed at the time Stephen 
B. McLaurin and Kristy M. Eubanks met with him on the morning of August 31. 1992. 

47. John Leaston told Stephen B. McLaurin and Kristy M. Eubanks on August 31 that Central would be 
awarded the contract because it was the lowest qualified bidder. 

48. John Leaston did not do a review of the financial portion of McLaurin's proposal. Mr. Leaston did 
not consider the memorandum prepared by LaBron Reid to John Boone which was faxed to the 
Division at 9:25 a.m. on September 1. 1992. 

49. John A. Leaston did not consider the analyses by the University in determining which was the lower 
price proposal because the figures were not submitted by a contractor (McLaurin). 

50. John Leaston stated at the hearing that he would have considered himself derelict if he had considered 
the University's financial analysis because in his opinion that would have been allowing "the 
University to manufacture some information to further support their position and qualify a contractor 
of their choice." 



324 8:3 NORTH CAROLINA REGISTER Max 3, 1993 



CONTESTED CASE DECISIONS 



51. John A. Leaston never considered McLaurin as being a qualified bidder for the contract because 
McLaurin did not submit a lump sum figure in its financial proposal. 

52. McLaurin estimates that it would have realized profit under the contract with UNC, had it received 
it, of approximately $25,000.00 between September 1, 1992, and August 31, 1993. 

53. McLaurin has spent approximately $18,000.00 in attorney fees in contesting the denial of this award. 
Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1 . The parties are properly before the Office of Administrative Hearings and the Office has jurisdiction 
to hear this matter and issue a recommended decision to the Secretary of Administration. 

2. Respondent failed to act as required by rule when it did not make a matter of record its contention 
that only a single acceptable bid was received. 

3. Respondent acted arbitrarily and capriciously by not giving careful consideration to the recommenda- 
tions given by UNC on behalf of Mcl^aurin. This would have been fair to the company which had 
satisfactorily served UNC for six years. 

4. Petitioner's financial proposal substantially complied with the RFP because McLaurin had managed 
and been paid by UNC for 332 similar events during the preceding six years. UNC was fully aware 
of the costs involved. 

Based on the foregoing Findings of Fact and Conclusions of Law, the Administrative Law Judge 
makes the following: 

RECOMMENDED DECISION 

1 . That Respondent authorize UNC to award a contract for parking management services to Petitioner 
for the period September 1, 1993, through August 31, 1994, pursuant to the financial proposal 
submitted by McLaurin in July of 1992. 

2. That competitive bids be solicited at an appropriate time for the period beginning September 1 , 1994. 

3. That those submitting proposals for the 1994-95 contract be specifically required to submit a lump 
sum amount before making any alternative proposal. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 



8:3 NORTH CAROLINA REGISTER May 3, 1993 325 



CONTESTED CASE DECISIONS 



The agency that will make the final decision in this contested case is the Secretary of the North 
Carolina Department of Administration. 



This the 2nd day of April, 1993. 



♦ 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



i 



♦ 



326 8:3 NORTH CAROLINA REGISTER May 3, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF GUILFORD 



IN THE OFFICE OF 
ADMINISTRATTVE HEARINGS 

93 CPS 0152 



MOSES H. CONE MEMORIAL HOSPITAL, 
Petitioner, 



N.C. VICTIMS COMPENSATION COMMISSION, 
Respondent. 



ORDER OF DISMISSAL 
FINAL DECISION 



UPON CONSD3ERATION of the Respondent's Motion to Dismiss in the above-captioned case, filed 
March 10, 1993, and the Petitioner's response to that Motion filed on March 22, 1993, the undersigned 
determines the following: 

1 . The Respondent moves to dismiss the above-captioned contested case asserting that the 
Petitioner is not a "claimant" as that term is defined in N.C. Gen. Stat. 15B-2(2). 

2. The Petitioner asserts that Respondent misinterprets N.C. Gen. Stat. 15B-2(2), and that 
Petitioner is, in fact, a "claimant" under that definition. 

DISCUSSION 

The statutory provision at issue, states: 

"Claimant means any of the following persons who claims an award of compensation under 
this Chapter: 



a. 
b. 
c. 



d. 



A victim; 

A dependent of a deceased victim; 

A third person who is not a collateral source and who provided 
benefit to the victim or his family other than in the course or scope 
of his employment, business, or profession; 

A person who is authorized to act on behalf of a victim, a Depen- 
dent, or a third person described in subdivision c. 



The claimant however may not be the offender or accomplice of the offender who committed 
the criminally injurious conduct." (N.C. Gen. Stat. 15B-2(2)) 

The relevant portion of that statute is subsection (c). In breaking down subsection (c) into its' 
elements, the following analysis evolves: 

A. "A third person" - Petitioner is a third person. 

B. "...who is not a collateral source..." - according to the provisions as they are 
outlined in 15B-2(3), Petitioner is not a collateral source. 



C. "...who provided benefit to the victim, 

medical care to the victim. 



Petitioner provided the benefit of 



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May 3, 1993 



327 



CONTESTED CASE DECISIONS 



D. "...other than in the course and scope of his employment, business, or profession." 

The issue in dispute appears to be whether the word "his" in this element refers back to "a 
third person " or to "the victim ". 

1. If the word "his" refers back to the word "victim", then a reading of subsection (c) would 
be "a third person claimant is anyone who provided benefit to the victim other than in the course and scope 
of the victim's employment, business or profession." 

2. If the word "his" refers back to "a third person", then a reading of subsection (c) would be 
"a third person claimant is anyone who provided benefit to the victim other than in the course and scope of 
the third person's employment, business or profession." 

The first interpretation noted above would provide that claimants include third persons who 
provide benefit to the victim except if that benefit relates to the victim's employment. This interpretation 
appears strained and without discernable logic. 

The second interpretation would provide that a third person claimant is that person who 
provides benefit to the victim other than in the course and scope of the third person's employment. This 
interpretation would include the "good Samaritan" and would exclude such third person professionals as police 
officers, social workers, emergency rescue personnel and medical care providers. 

It is the opinion of the undersigned that subsection (c) was intended to refer to such people 
as the "good Samaritan" who provides assistance to the victim of a crime and that the word "his" refers back 
to "a third person." 

It is further the opinion of the undersigned that the Petitioner is not a claimant as that term 
is defined in N.C. Gen. Stat. 15B-2(2) because they provided their services in the course and scope of their 
employment, business or profession. 

ORDER 

It is therefore concluded, that the Office of Administrative Hearings does not have jurisdiction to hear 
this matter because the Petitioner has no right of appeal as a third person claimant and that this Petition must 
be. and hereby is, DISMISSED. 

This matter is dismissed pursuant to N.C. 150B-36(c)(l) and this is a Final Decision. 

NOTICE 

In order to appeal a Final Decision, the person seeking review must file a Petition in the Superior 
Court of Wake County or in the superior court of the county where the person resides. The Petition for 
Judicial Review must be filed within thirty (30) days after the person is served with a copy of the Final 
Decision. G.S. 150B-46 describes the contents of the Petition and requires service of the Petition on all 
parties. 

This the 2nd day of April. 1993. 



Dolores O. Nesnow 
Administrative Law Judge 



328 8:3 NORTH CAROLINA REGISTER May 3, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Architecture 




2 


2 


Agriculture 


Auctioneers 




4 


3 


Auditor 


Barber Examiners 




6 


4 


Economic & Community Development 


Certified Public Accountant Examiners 


8 


5 


Correction 


Chiropractic Examiners 




10 


6 


Council of State 


General Contractors 




12 


7 


Cultural Resources 


Cosmetic Art Examiners 




14 


8 


Elections 


Dental Examiners 




16 


9 


Governor 


Dietetics/Nutrition 




17 


Id 


Human Resources 


Electrical Contractors 




18 


1 1 


Insurance 


Electrolysis 




19 


12 


Justice 


Foresters 




20 


13 


Labor 


Geologists 




21 


14A 


Crime Control & Public Safety 


Hearing Aid Dealers and Fitters 




22 


15A 


Environment, Health, and Natural 


Landscape Architects 




26 




Resources 


Landscape Contractors 




28 


16 


Public Education 


Marital and Family Therapy 




31 


17 


Revenue 


Medical Examiners 




32 


18 


Secretary of State 


Midwifery Joint Committee 




33 


19A 


Transportation 


Mortuary Science 




34 


20 


Treasurer 


Nursing 




36 


21 


Occupational Licensing Boards 


Nursing Home Administrators 




37 


22 


Administrative Procedures 


Occupational Therapists 




38 


23 


Community Colleges 


Opticians 




40 


24 


Independent Agencies 


Optometry 




42 


25 


State Personnel 


Osteopathic Examination & Reg. 


(Repealed) 


44 


26 


Administrative Hearings 


Pharmacy 

Physical Therapy Examiners 




46 
48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 




52 






Practicing Counselors 




53 






Practicing Psychologists 




54 






Professional Engineers & Land Surveyors 


56 






Real Estate Commission 




58 






" Reserved " 




59 






Refrigeration Examiners 




60 






Sanitarian Examiners 




62 






Social Work 




63 






Speech & Language Pathologists 


& Audiologists 


64 






Veterinary Medical Board 




66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



8:3 



NORTH CAROLINA REGISTER 



May 3, 1993 



329 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1993 - March 1994) 

Pages Issue 

1 - 92 1 - April 

93 - 228 2 - April 

229 - 331 3 - May 



I 



Unless otherwise identified, page references in this Index are to proposed rules. 



( 



ADMINISTRATION 

Administration's Minimum Criteria, 5 

Low-Level Radioactive Waste Management Authority, 232 

ENVIRONMENT. HEALTH. AND NATURAL RESOURCES 

Coastal Management, 279 

Environmental Management, 210 

Health Services, 283 

Marine Fisheries. 28 

Soil and Water Conservation, 214 

Wildlife Resources Commission, 32 

FINAL DECISION LETTERS 

Voting Rights Act, 4 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 93, 229 

HUMAN RESOURCES 

Facility Services, 94 

Medical Assistance, 25 

Mental Health, Developmental Disabilities and Substance Abuse Services, 7 

Social Services Commission, 237 

JUSTICE 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Division, 241 

Private Protective Services Board, 252 

LABOR 

OSHA. 97, 231, 278 

LICENSESG BOARDS 

Architecture, 43 

Geologists. Board of, 285 

Mortuary Science, Board of, 45 ^ 

Pharmacy, Board of, 47 W 

Physical Therapy Examiners, 53 

Real Estate Commission. 53 



330 8:3 NORTH CAROLINA REGISTER May 3, 1993 



CUMULATIVE INDEX 



) 



LIST OF RULES CODIFIED 

List of Rules Codified, 61, 290 

STATE PERSONNEL 

Office of State Personnel, 286 



> 



8:3 NORTH CAROLINA REGISTER May 3, 1993 331 



♦ 



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